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What You Should Know: HIV/AIDS & Employment Discrimination

OVERVIEW

NATIONAL HIV/AIDS STRATEGY
The reduction of HIV-related disparities and health inequities, including the reduction of stigma and discrimination against persons living with HIV, is one of the central goals of President Obama's National HIV/AIDS Strategy. The EEOC has a critical role in eradicating employment discrimination against those living with HIV/AIDS through our enforcement and litigation efforts, and our work to educate employers, job applicants, and workers on their rights and responsibilities. 

APPLICABLE LAW
Title I of the Americans with Disabilities Act (ADA) prohibits employers from discriminating against job applicants and employees on the basis of disability. The law also protects applicants and employees who do not have disabilities, but are regarded as having disabilities. Section 501 of the Rehabilitation Act similarly prohibits federal agencies from discriminating against applicants or employees on the basis of a disability, and adopts the standards in the ADA.

HIV, EMPLOYMENT DISCRIMINATION, & THE ADA

DISABILITY
A disability under the ADA is a physical or mental impairment that substantially limits one or more major life activities or a record of such an impairment. A person also qualifies as an individual with a disability if he or she is subject to a prohibited action due to an actual or perceived impairment. Someone who is HIV-positive will easily meet this definition because HIV substantially limits major life activities such as functions of the immune system. Someone who is subjected to a prohibited employment action, such as failure to hire or termination because of HIV or the suspicion of HIV, could also easily show that an action was taken against him or her because of an actual or perceived impairment.

QUALIFIED INDIVIDUAL
To be protected by the ADA, an individual with a disability must be qualified. An individual with a disability is qualified if he or she meets job-related requirements (e.g., has the necessary skill, education, and training for the job), and can, with or without a reasonable accommodation, perform the essential functions of the job. An employer may select the most qualified applicant available and is not required to prefer an individual with a disability over a better qualified applicant without a disability.

ASSOCIATION WITH AN INDIVIDUAL WITH A DISABILITY The ADA protects persons who are discriminated against because they have a known association or relationship with an individual who is HIV-positive, such as where an employer refuses to hire or terminates someone because it believes the individual will contract HIV from a family member and transmit it to customers.

REASONABLE ACCOMMODATION
An employer must provide a reasonable accommodation to the known limitations of an otherwise qualified individual with a disability who needs one unless providing the accommodation would be an undue hardship.

A reasonable accommodation is any modification or adjustment to a job, the job application process, or the work environment that enables a qualified applicant or employee with a disability to have equal employment opportunities. A requested reasonable accommodation imposes an undue hardship on an employer if it involves significant difficulty or expense or requires the employer to change the basic nature of the business.

Example: Bill, an employee with HIV, must take medication on a strict schedule. The medication causes nausea one hour after ingestion, which generally lasts 45 minutes. He asks that he be allowed to take a daily 45-minute break when the nausea occurs. The employer must grant this request absent undue hardship.1

MEDICAL INQUIRIES AND EXAMS
The ADA strictly limits when employers may ask medical questions or require medical exams.

Application & Interview Stage

An employer may not ask a job applicant disability-related questions, including whether the applicant is HIV-positive, before making a job offer. However, an employer may ask applicants whether they can perform the job and how they would perform the job, with or without an accommodation.

After Offer of Employment

After a job offer, but before an individual starts work, an employer may ask disability-related questions and require medical exams as long as the same questions and exams are required for everyone in the same job category. An employer may only withdraw an offer from an applicant with a disability if it becomes clear that he or she cannot perform the essential functions of the job or would pose a direct threat to health or safety in the workplace.

Example: Ben is given a conditional offer for a social worker position. The employer requires him to take a medical exam, which reveals that he has HIV. The employer may not withdraw the offer due to concerns about reactions that staff or patients may have to persons with HIV.

During Employment

An employer generally may only ask an employee medical questions or require a medical exam if it reasonably believes that the employee may be unable to perform a job successfully or safely because of a medical condition. The employer's reasonable belief must be based on objective evidence that it observed or learned from others who provided reliable information.

Example: A supervisor learns that Joe, one of his construction workers, is HIV-positive and has been taking medication for the past two years. There have been no incidents indicating a performance problem. The supervisor wants to send Joe for a medical exam to ensure that he is able to perform his duties. Requiring this exam violates the ADA because the supervisor has no objective evidence that he is unable to perform his job or poses a direct threat.

An employer also may ask an employee for reasonable documentation where an employee requests a reasonable accommodation and the disability and/or the need for an accommodation is not obvious or already known.

Finally, disability-related questions or medical examinations required by another federal law or regulation, such as testing allowed under regulations governing certain types of transportation jobs, are also permitted.

CONFIDENTIALITY
The ADA requires that medical information of employees and applicants be kept confidential. Medical information should be kept confidential even if it contains no medical diagnosis or treatment course, and even if it is not generated by a health care professional.

Example: An employer learns that an employee has HIV through social media. This medical information is subject to the ADA's confidentiality requirements.

In limited circumstances, employers may have to disclose medical information about applicants or employees. Information may be disclosed where: (1) it is needed in order to provide a reasonable accommodation; (2) an employee needs emergency treatment or requires assistance due to a medical condition; (3) persons investigating compliance with the ADA and similar state and local laws request information; and (4) the information is needed for workers' compensation or insurance purposes.

SAFETY CONCERNS
Under the ADA, an employer may exclude an applicant or employee with a disability from a particular position if that individual poses a direct threat to health or safety in the workplace.

Direct threat is defined as a significant risk of substantial harm to the individual or others in the workplace that cannot be reduced or eliminated through reasonable accommodation. This determination must be based on an individualized assessment of the applicant's or employee's present ability to safely perform essential job functions. It cannot be based on generalizations or unfounded fears about a particular condition.

Example: Sue, a phlebotomist who draws blood, has HIV. Since the best available medical evidence indicates that HIV-positive healthcare workers in this type of position do not pose a direct threat to patient safety if they adhere to standard precautions, she does not pose a direct threat based on her HIV-positive status.

Healthcare Workers

The Center for Disease Control (CDC) advises that HIV-positive health care workers who follow standard precautions and who, except in specified circumstances do not perform specially-defined exposure-prone invasive procedures, do not pose a safety risk in their employment based on HIV infection.2

Food Safety

According to the Department of Health and Human Services (HHS), HIV/AIDS is not a disease that can be transmitted through food handling.

Example: In response to post-offer questions, Luka, an applicant for a food service job at a restaurant, discloses that he is HIV-positive. HIV is not listed as one of the foodborne illnesses on the CDC's list of infectious or communicable diseases transmitted through the handling of food. The restaurant may not withdraw the offer because of concerns about co-worker reactions or assumptions that Luka may tire too easily.3

EMPLOYMENT TRAINING PROGRAMS
A public or private entity cannot deny a person with HIV an occupational license or admission to a trade school because of his or her disability. Title II of the ADA prohibits state licensing agencies and public trade schools (i.e. barbering, massage therapy, and other occupations) from discriminating on the basis of a disability, including HIV. Title III of the ADA prohibits public accommodations, such as private vocational and technical colleges, from discriminating on the basis of a disability, including HIV.4

The Department of Justice (DOJ) enforces Titles II and III of the ADA. An applicant or student seeking an occupational license or admission to a trade school, who believes that he or she has been subject to disability discrimination, should file a complaint with DOJ.

EEOC ENFORCEMENT AND LITIGATION

Between 1997 and 2014, the EEOC received more than 4,000 charges alleging ADA violations based on a person's HIV status. In FY 2014, the EEOC received and resolved 197 such charges and obtained $825, 674 for victims of discrimination.5

EEOC has filed several lawsuits against employers that refused to hire applicants or terminated employees due to their HIV status. Recent cases include:

Failure to Hire

EEOC v. Maxim Healthcare Services Inc., d/b/a Maxim Staffing Solutions (W.D. Pa.): EEOC alleged that Maxim, a medical staffing service, withdrew an offer for an assignment that involved sitting with patients at a medical facility because the candidate was HIV-positive. In December 2014, the company entered into a consent decree that requires it to pay $75,000 and to create, enforce, and implement a complaint procedure and policy that prohibits disability discrimination, harassment, and retaliation.

EEOC v. Famous Chicken of Shreveport, L.L.C. d/b/a Popeye's (E.D. Tex.): EEOC sued Famous Chicken of Shreveport, L.L.C., a Popeye's Chicken franchisee, alleging that the company asked the Charging Party to disclose medical information before making a job offer, and then refused to hire him after learning that he was HIV-positive.  In September 2014, Popeye's entered into a consent decree that requires it to pay $25,000 in relief and provide ADA training to its staff. 

Failure to Accommodate

EEOC v. Maverik, Inc., d/b/a Maverik Country Stores (D. Wyo.): EEOC alleged that a convenience store violated the ADA by failing to accommodate and then firing an HIV-positive bakery clerk. In November 2011, the company entered into a consent decree that requires it to pay $115,000 in relief, review its ADA non-discrimination policy, and provide ADA training to members of its workforce and management.

Wrongful Termination

EEOC v. Gregory Packaging, Inc. (N.D. Ga.): EEOC alleged that the company, a manufacturer and distributer of juice products, violated the ADA when it fired an employee who worked as a machine operator in the packing department after learning that he was HIV-positive, despite his good job performance and demonstrated ability to work safely. In March 2015, the company entered into a consent decree that requires it to pay $125,000 in relief and includes provisions for equal employment training, reporting, and postings.  

EEOC v. Christian Care Center (E.D. Tenn.): EEOC sued a nursing home facility alleging that it violated the ADA when it fired a licensed practical nurse after learning that the employee was HIV positive. In May 2014, the company entered into a consent decree that requires it to pay $90,000 in relief and conduct ADA training, maintain records of discrimination complaints, and provide reports to EEOC.

EEOC v. Plasma Biological Services, LLC, and Interstate Blood Bank, Inc. d/b/a Plasma Biological Services (W.D. Tenn.): EEOC alleged that a plasma collection center violated the ADA when it terminated an employee because he showed a viral marker for HIV, even though further testing revealed the employee was negative for HIV. EEOC also alleged that company policy required termination of any employee who tested positive for a viral marker and that the company failed to maintain separate medical and personnel files. In October 2015, the company entered a consent decree requiring that, among other things, it pay $60,000 in relief, provide annual disability training, and maintain separate medical and personnel files.

EEOC v. KAY QSRS, Inc. d/b/a Subway (S.D. Ind.) (pending): EEOC's suit alleges that a Subway franchise violated the ADA when it terminated an employee after learning that he was HIV-positive. EEOC is seeking to recover monetary compensation and a permanent injunction to prevent future disability discrimination. 

TRAINING AND OUTREACH

TRAINING & RELATED GUIDANCE DOCUMENTS
EEOC continues its efforts to ensure that employers, state and local governments, and people with disabilities, including people living with HIV/AIDS, are aware of their rights and responsibilities under the law. In the past two fiscal years (2014-2015), the agency has conducted 1,775 events and reached 109,186 people to raise awareness about the ADA.6 EEOC has also published enforcement guidances and technical assistance documents on the ADA, many of which address issues that are important to employees and applicants living with HIV/AIDS and employers.

EEOC Enforcement Guidance

EEOC Technical Assistance Documents

Technical Assistance Documents from Other Federal Agencies

FILING A CHARGE OF EMPLOYMENT DISCRIMINATION

A job applicant or employee who believes that he or she has been subjected to discrimination on the basis of HIV/AIDS should file a complaint with the EEOC within 180 days (or in many states 300 days) of when the discrimination occurred. For technical assistance or to file a complaint of employment discrimination, contact EEOC at 800.669-4000 (Voice) or 800-669-6820 (TTY) or visit https://www.eeoc.gov/.

The EEOC will continue to combat stigma and discrimination against people with HIV/AIDS in the workplace, educate the public on these issues, and do what is necessary to realize the President's vision under the National HIV/AIDS Strategy.

Footnotes

1The ADA: Your Employment Rights as an Individual with a Disability, at Question 22, Example A

2Recommendations for Preventing Transmission of HIV and Hepatitis B Virus to Patients During Exposure-Prone Invasive Procedures

3 RESCINDED - How to Comply with the Americans with Disabilities Act: A Guide for Restaurants and Other Food Service Employers, at Example 13

4DOJ Questions and Answers: The ADA and the Rights of Persons with HIV/AIDS To Obtain Occupational Training and State Licensing

5Enforcement and Litigation Statistics: Americans with Disabilities Act of 1990 (ADA) Charges

6FY 2015 Performance and Accountability Report; FY 2014 Performance and Accountability Report