Despite Laws, HIV Discrimination Continues in Workplace

The question of job protection for LGBT workers looms large in the gay rights struggle. Most U.S. states do not have laws protecting gay workers from being fired--or not hired--because of sexual orientation. Several federal and state laws, however, do forbid discrimination in hiring or termination of the HIV positive.

Despite such protections, people continue to experience workplace discrimination based on their HIV status - sexual orientation notwithstanding. There are numerous cases that indicate a widespread disregard for laws already in place.

Edge recently spoke to three legal experts who advocate for HIV positive workers. With the law on their side, most cases, it seems, can be resolved by educating both employers and employees about their legal rights and obligations. Often, neither side is aware of their status.

Rose Saxe, a staff attorney with the ACLU AIDS Project, says that HIV-positive gay men are particularly vulnerable. "Most employers don't want to say publicly that they fired you because you're gay, but they can use sexual orientation as a pretext to firing an HIV-positive person," she said. "That's a concern."

These two issues "play off each other in an unfortunate way," Saxe observes. Because gay and bisexual men are overwhelmingly represented in terms of those living with HIV, homophobia is at the bottom of a lot of HIV and AIDS discrimination."

That link becomes apparent when the details of a particular case are brought out into the open. "Usually, employers manage to reveal some information as to why they made the decision," Saxe said. "If the only gay person they fired was living with HIV, that suggests their HIV status was the real motivation."

This loophole could easily be closed by a federal law that makes it clear you may not discriminate on the basis of sexual orientation; protections that would ensure fair employment practices for LGBT people and those living with HIV, according to Felix Lopez, director of legal services at Gay Men's Health Crisis. That would go a long way to eliminate some of the situations we run into, even in relatively gay-friendly, liberal New York City and true-blue New York State, where there are comprehensive and very liberal human rights laws.

Lopez is optimistic regarding the possibility of new federal laws and the shoring up of current legislation. "The new administration is committed to the development of a national AIDS strategy," he said. "Part of that has to be federal protections for people who are HIV positive, which would extend to members of the LGBT community."

Making the Disabilities Act Work
Until federal legislation trumps the wildly uneven state-to-state protections, HIV positive people have the Americans with Disabilities Act. ADA may present the best-case scenario of discouraging discrimination and providing legal recourse when it does happen.

Even so, the act has its limitations. "The ADA covers employers with fifteen or more employees," Saxe pointed out. "And some state laws cover smaller employees as well."

TADA does not mention any disabling condition by name. Nevertheless, it has widely been interpreted to include those with HIV, because their status qualifies as a disabling condition that can impair major life activity. Saxe also points out that a 2008 clarification to the law identified "things like immune function as part of major life activities."

That clarification occurred in response to a series of Supreme Court decisions that Saxe said "unduly narrowed the scope that Congress meant the ADA to cover."

But when the employer is the U.S. government, the ADA protections are overshadowed by the shadowy machinations of contracts that seek to bar the HIV positive by classifying them as risks to fellow employees--and, by extension, national security.

The ACLU recently filed a lawsuit that charges the U.S. State Department discriminated against a former veteran because he has HIV. In 2005, government contractor Triple Canopy accepted "John Doe" to provide personal security for the U.S. Embassy in Haiti. The day before graduating from his training program, he was let go "because the State Department would not allow workers with HIV to be deployed oversees," according to published reports.

The ACLU maintains that the State Department's contract, which required a negative HIV test for all employees, violates the Rehabilitation Act and the Americans for Disabilities Act. The contract also lists "suggested physical standards," which include a requirement that all contractor personnel be "free from communicable disease."

"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 fa?ade 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.