HIV Discrimination in the Workplace

HIV Discrimination in the Workplace

Can I be fired (or not hired) because of my HIV status?

Except in a few extremely rare circumstances, it is against the law for someone to fire you for being HIV-positive or to ask you if you’re HIV-positive during the hiring process.

A person’s HIV status should not dictate what she or he can—or cannot—do at work. This should be determined by qualifications, talents and commitment to the job. Some workers with HIV may require accommodations in order to perform a particular job, while others may never experience limitations that affect their ability to work.  When health care issues do affect a person’s ability to work, the same rules about how to handle that situation apply regardless of whether the person is HIV-positive or HIV-negative. But that’s illegal. See “What laws protect me from anti-HIV discrimination at work?”

What laws protect me from HIV discrimination at work?

Employers are bound by federal laws, and in some cases, state and city laws, to ensure that HIV-positive workers have job security, privacy, reasonable accommodations (when necessary) and a workplace that is free of harassment and discomfort.

The main federal law that protects employees living with HIV is the Americans with Disabilities Act (ADA), which prohibits discrimination against people who are disabled or perceived to be disabled in any workplace with at least 15 employees (not including federal agencies, which are covered by the Rehabilitation Act, below). In 2008, Congress amended the ADA to clarify that its protections extend to people living with HIV.

The Rehabilitation Act of 1973 prohibits disability discrimination by federal agencies or contractors or by employers that receive federal funding.

Under both laws, employers may not refuse to hire and may not terminate a person with a disability unless the individual’s disability truly would prohibit him or her from being able to safely perform the “essential functions” of the job. 

What are the “essential functions” of a job, and how does the concept protect me as an employee living with HIV?

The essential functions of a job are its core duties—basically, the reason the job position exists. For example, an essential function of a typist’s position is the ability to type; an essential function of a school bus driver’s position might be the ability to drive and presumptive availability from 7am-10am and 2pm-5pm Monday through Friday.

Under federal law, employers may not fire or refuse to hire someone with HIV or another disability if the person can perform “essential” functions of the job. This assures that the person will not be considered unqualified simply because of his or her inability to perform marginal or incidental job functions.

Can I be fired or not hired based on an employer’s fear that I might get sick in the future?

Employment decisions can’t be based on the fear that someone might be more ill in the future; only an employee’s current situation can be considered.

Similarly, fear of higher costs for medical insurance or workers’ compensation costs cannot affect an employer’s decision about whether to hire or fire someone.

Can I be fired or not hired based on an employer’s fear of harm to the health and safety of other employees?

Yes, but only if the employer can establish through objective, medically supportable (and current) methods that there is a significant risk to other employees’ health or safety. There are few, if any, occupational settings in which a person’s HIV presents a significant risk to the health or safety of others.

How does the federal Americans With Disabilities Act (ADA) protect HIV-positive workers?

In addition to the direct prohibition against discrimination, the two features of the ADA that play an important role for people living with HIV are these:

1. Workplace confidentiality

2. The right to reasonable work accommodations that permit the employee to perform the essential duties of her or his job despite any minor limitations on what the person is able to do.

1. Workplace confidentiality

The ADA outlines specific rules about providing confidentiality and privacy for job applicants and employees with HIV:

  • Applicants do not have to disclose their HIV status to a prospective employer unless it affects their ability to perform the job.
  • Before making a job offer, an employer cannot test applicants for HIV.
  • Once an employer makes a “conditional offer” (one conditioned solely on passing a physical or medical exam), employers can require that a prospective employee take an HIV test, but only if the test is required uniformly of all persons considered for that position.
  • An employer can ask general questions about a prospective employee’s health prior to making a conditional offer of employment, but only if the questions are not likely to reveal a disability. Furthermore, employers can’t use an employee’s answers to screen out people with disabilities unless the exclusion is based on inability to perform job-related functions even with a reasonable accommodation.
  • After an employee is hired, an employer can usually only ask questions about disability or health if the inquiry is “job-related and consistent with business necessity.”
  • All information and records collected by an employer about an applicant’s or employee’s medical condition must be kept confidential by the employer.

2. Reasonable work accommodations

Another useful federal safeguard for employees living with HIV is the right to reasonable accommodations. Depending on the circumstances, an employer’s reasonable accommodations could include approving a flexible schedule, modifying the non-essential job duties, or agreeing to other adjustments that allow a disabled employee, including one with HIV, to perform the essential functions of a job.

Under the ADA, whether an accommodation is “reasonable” and must be provided depends on the specific job, the extent of the employee’s needs and the employer’s size. An employer has the right to ask for information to make sure the employee is disabled and in need of reasonable accommodations. However, it may be possible for a medical professional to establish the need for an accommodation without revealing a particular diagnosis, such as HIV. An employer need not provide an accommodation that is overly expensive or too administratively difficult.

(Click here for more information about how the ADA covers employees with HIV).

What state or local laws protect me from HIV discrimination at work?

Many states also prohibit disability discrimination, and some states expressly prohibit discrimination against anyone with HIV. In addition, some cities offer specific protections for workers with HIV. Though the Americans with Disability Act (ADA) is quite protective of people living with HIV, there may be features of state law that make filing a claim under one of those laws the best option (for example, some state laws apply to smaller employers than the ADA covers).

What’s the best way to make an official complaint about HIV discrimination at work?
Should I disclose my HIV status to my employer and/or co-workers?

That depends on your personal circumstances and specific work situation.

Some people living with HIV may not be able to safely disclose their HIV status at work, due to persistent HIV-related stigma and discrimination—or an employer’s sheer lack of information. Consider consulting a lawyer before revealing information at work.

If your HIV status is known to your employer, the federal Americans with Disabilities Act (ADA) generally requires employers to keep confidential HIV-related information they collect and prohibits employers from discriminating against people with HIV. However, for disclosures made outside of the protections of the ADA (for instance, disclosure to a co-worker or disclosure in a workplace with fewer than 15 employees), your employer or other employees may not be obligated to keep information about your HIV status confidential. Therefore, it’s important to be careful about discussing your HIV status and keep in mind that, although there are legal protections against employment discrimination based on HIV status, there are also some gaps in what those laws cover; confidentiality can be impossible to regain once information becomes public; and discrimination may be hard to prove.

What kinds of work-related accommodations are considered “reasonable” under the ADA for an employee living with HIV, and how do I request one?

Common workplace accommodations made for people with HIV include time off for doctor’s visits and flexible work schedules for employees who experience fatigue at certain times of day.

To request a reasonable accommodation as a person living with HIV, follow these steps:

  • Approach your immediate supervisor first.
  • If your immediate supervisor does not respond favorably, you may need to enlist the support of your human resources department or a union representative.
  • Keep in mind that not everyone you speak to in your workplace may be held legally accountable to protect your confidentiality, especially those who are neither in Human Resources nor in a chain of supervision over you.
  • If your employer asks for proof that you are disabled, you may want to consult an attorney before making a disclosure about your HIV status.
  • Your employer may consider it sufficient for your doctor to explain in writing that you have a “chronic condition” that causes you to need the accommodation you are requesting, without specifying what that condition is.  However, some employers do require their disabled employees to provide a medical diagnosis.

Consider the following when making a request:

  • Be specific. Put your request in writing, and use the word “accommodation.”
  • Be strategic. Always emphasize how productive the accommodation(s) will make you.
  • Be realistic about your request. Your employer’s obligation to accommodate you will depend on the particular facts of your situation, such as the size and type of business, the job at issue and the type of accommodation you are requesting.
  • Ask your employer to be prepared to address any backlash you receive from coworkers who feel you are getting “special treatment.”
  • Be pro-active. Bear in mind that you will not be in a good position to negotiate if you request reasonable accommodations retroactively. For example, you will be in a better position if you ask your employer ahead of time for flexibility about your arrival time, rather than waiting until you are approached by your supervisor for arriving late to work every day for a month, and then saying, “You need to let me come in late because I have a condition that makes it very difficult for me to be on time.”
How has Lambda Legal succeeded at bringing HIV workplace discrimination cases to successful resolution?

Lambda Legal HIV has used the Americans with Disability Act (ADA) and (in the case of Taylor v. Rice) the federal Rehabilitation Act to win policy changes and settlements in a range of cases, including these key victories:

Matthew Cusick, a performer who was fired by Cirque du Soleil for having HIV, won a record cash settlement and forced Cirque to initiate companywide antidiscrimination training and alter its employment policies worldwide concerning people living with HIV.

A U.S. State Department employee who was barred from the Foreign Service forced the Department to adopt new hiring guidelines and lift its ban against hiring people with HIV as Foreign Service Officers.

A sandwich shop employee who was fired for having HIV received a settlement with terms that include company-wide policy changes

A qualified man who was barred from joining Atlanta Police Department (APD) because he has HIV lost before the trial court.  However, Lambda Legal teamed up with his lawyer and took his case on appeal, got the trial court decision reversed, and secured a sizable settlement and citywide policy changes.

FOR MORE INFORMATION: Contact our Help Desk if you feel you have experienced discrimination.