Discrimination On The Basis Of HIV In The Workplace Is Illegal

When we think of discrimination in the workplace, we often think of discrimination on the basis of race or gender. However, there is another type of discrimination: Discrimination on the basis of people who may have HIV.

Although nowadays, HIV can be controlled by medication, thankfully allowing those with the disease to lead long and productive lives, the fact remains that many employers still discriminate against employees with HIV.

ADA Prohibits Discrimination

Under the Americans with Disabilities Act (ADA), discrimination against employees who have HIV, is illegal (The ADA protects against discrimination against any worker who is disabled, regardless of the disability or disease, so long as the disability or disease is otherwise covered by the act).

To be covered under the ADA, a disease must substantially limit someone’s life activities, but those don’t have to be physical limitations. A disease like HIV, which cripples the victim’s immune system, also qualifies as a “limitation” under the ADA. This is true even though the employee may externally appear to be strong and able-bodied.

The ADA also prohibits discriminating against any employee or worker, who may be exposed to HIV. For example, it would be illegal for an employer to discriminate against someone whose family member or partner has HIV, even though the actual employee doesn’t have the disease.

Making Accommodations for Employees With HIV

Under the ADA, accommodations may have to be made for employees who have HIV. These accommodations may include providing additional sick time or allowing an employee to work remotely, in the event the employee is sick, or is concerned about getting sick (for example, if a co-worker is sick in the office, and the HIV-infected employee doesn’t want to be exposed to the disease in the office).

Medicine that HIV patients take may have side effects that may require that the employee be given additional accommodations.

Accommodations may also require reducing someone’s physical work load. Many HIV patients may be weak due to excess fatigue, or as a side effect of medications that they take. These employees cannot be required to do manual, physical, or heavy labor that they cannot do because of HIV.

Customer Fear is Irrelevant

An employer cannot use “fear” as an excuse to discriminate. Just because the employer is concerned that customers may be afraid, or that they may not frequent the business because of the HIV-infected employee, the employer still cannot discriminate. In fact, medically, there is almost no chance that customers will even contract HIV from those with the disease, unless you are in a business where bodily fluids may be exchanged, such as emergency responders, or perhaps those in health care related industries.

Note that the HIV-infected employee still has to be otherwise qualified to do the job itself. An employer can legally punish, fire, or not hire, someone who simply is not qualified to do the work that is required of the job.

Contact the San Jose employment law lawyers at the Costanzo Law Firm today to schedule a consultation if you feel you have been discriminated against in the workplace.

Sources:

eeoc.gov/laws/guidance/what-you-should-know-hivaids-employment-discrimination

hiv.gov/hiv-basics/living-well-with-hiv/your-legal-rights/workplace-rights