Despite Laws, HIV Discrimination Continues in Workplace
"It is especially troublesome when a government contract is at the root of that discrimination." says Saxe. Equally troublesome is the fact that the actions of the State Department and Triple Canopy seem to violate the Rehabilitation Act, which holds the government to an even higher standard by protecting those with "handicaps from discrimination by any government program."
At the root of the ACLU’s argument is a rebuttal to Triple Canopy’s claim that Doe’s HIV status posed a risk to others. "There was no reason Doe could not have done the job," Saxe argued. "We are aware of no instances where HIV was transmitted within the context of providing security. Our position is our client could do the job safely."
The John Doe case is, according to a January 12, 2009, statement from the ACLU, the latest in a string of challenges against the U.S. government for discrimination against people with HIV in the workplace.
Just this past July, the ACLU was finally able to persuade the Peace Corps to eliminate its policy of automatically barring volunteers with HIV. In February 2008, Lambda Legal settled a lawsuit brought against the State Department on behalf of a Foreign Service Worker for HIV discrimination. Foggy Bottom agreed to eliminate its policy of automatically excluding workers with HIV. This was a significant victory, since State has always been able to hide behind the fašade of national security--as when it barred all gay workers as being security risks until recent decades.
In Private Sector, ’It’s Still 1986’
In the commercial workplace, Lopez bemoans the fact that "even now, we still come up against situations so egregious you’d think we were living in 1986. These cases have been settled for twenty years now."
GMHC recently settled a case that went to federal court in which "A cosmetics company fired two employees upon discovering they were HIV positive." That case, which took several years to resolve, was settled "out of court, because the company decided it didn’t make sense for them to risk a verdict."
But in terms of sheer uninformed audacity, Lopez referenced another recent case in which a dentist declined to treat a GMHC clients because he was HIV positive. In another case, a doctor fired his scheduler because he has HIV--someone who simply talks to people over the phone.
These three incidents, "surprised those of us in this field who are seeing claims and issues that arose twenty years ago," Lopez said. Such unfounded concerns about how infectious HIV-positive people are "should by now be common knowledge," he added.
Sports Figures Bring Publicity to Issue
Bill Hirsh, executive director of the AIDS Legal Referral Panel in San Francisco (www.alrp.org), emphasizes that even a law affording protection is of no help to those who are unaware of its requirements and implications. "Not everybody is aware of their rights." Hirsh notes. "Some small employers may not know about their obligations around the law."
In our sports-made society, it’s notable that the two most famous HIV-related employment cases involve professional athletes. In 1991, basketball legend Magic Johnson tested positive during a routine physical to qualify for the Olympics. Some of his teammates and opponents didn’t want to play with him. He ended up playing after a media firestorm.
The case of professional boxer Tommy Morrison was complicated by the fact that he insisted his diagnosis was a false positive, and the nature of the sport. After testing positive in the mid-’90s, Morrison was automatically barred from boxing, because of drawing blood is so routine in the ring. He fought one bout for an AIDS charity.
But then he insisted he was negative, and an impartial observer buttressed his story. He returned to the ring, but more recently again tested positive. What is most significant is that he continued to box--and that opponents were willing to fight him. Both his and Johnson’s cases brought attention to HIV issues in the workplace by their dramatic setting.
Hirsh points out that "The greatest area where we see discrimination is in the failure of employers to grant reasonable accommodations to those with HIV." That includes, he says, "working a reduced schedule and taking time off for doctor’s visits."
Most of the cases he works with are usually settled before going to court. They usually revolve around the negotiation for reasonable accommodation that is required by the law.
"It’s unfortunate that people have to find a lawyer and go to the trouble of suing," Saxe added. "The problem isn’t that we don’t’ have laws. It’s that employers haven’t learned they need to stop making ill informed decisions about what it means to have HIV. We’re working towards the day when this thing doesn’t happen in the first place."
If you believe that you’ve experienced workplace discrimination because of your HIV status, contact the organizations involved in this article. Hirsch also recommends the Center for HIV Law and Policy, a support center that offers referrals to legal aid through a resource bank on their website.