Since the human immunodeficiency virus (HIV) and acquired immunodeficiency syndrome (AIDS) first entered the public consciousness in the 1980s, medical professionals have learned much more about how to diagnose, treat, and prevent spread of the disease.
Unfortunately, in the early days of the HIV/AIDS crisis, fear and ignorance about the disease led to widespread discrimination, including in the employment sector. However, many of these fears turned out to be irrational, and the government stepped in to provide protection to employees with HIV or AIDS.
Antidiscrimination Laws
The federal Americans with Disabilities Act (ADA) prohibits employers with 15 or more employees from discriminating against applicants or employees who have disabilities. It also protects those who are perceived as having a disability, even if they do not.
The ADA defines a disability as a physical or mental impairment that substantially limits one or more major life activities or bodily functions. It is well established that people with HIV or AIDS fall within the protection of the ADA, as their immune systems are substantially limited by the disease. People who are suspected of having HIV, even if they do not, will also be protected by the ADA.
This means employers cannot fire an employee, or refuse to hire an applicant, because of his or her HIV-positive status or AIDS diagnosis. An employer likewise can’t ask an applicant whether he or she has HIV or AIDS during the application process.
The ADA also prohibits discrimination against someone who associates with a person with HIV or AIDS. For example, an employer can’t refuse to hire an applicant because he or she is married to someone with HIV.
In addition, Title VII of the Civil Rights Act protects gay, lesbian, and transgender workers—regardless of HIV status—from employment discrimination of any kind, including in hiring, firing, or conditions of employment.
Testing Applicants for HIV
The ADA places restrictions on an employer’s ability to test applicants for HIV. An employer may require an applicant to undergo a medical examination only after the applicant has been given a job offer. And, the employer must require everyone who holds that position to undergo testing. In other words, the employer can’t single out certain applicants for testing just because it suspects they might have HIV.
If a medical examination reveals that an applicant has HIV, the employer may only withdraw the offer if:
- the applicant cannot perform the essential functions of the job with or without a reasonable accommodation (see below), or
- the applicant would pose a direct threat to health or safety in the workplace.
Both of these standards would be very difficult to meet on the basis HIV-positive status alone. While there is still no cure for HIV, antiviral medications allow many infected people to live long and healthy lives. In fact, many people with HIV show no outward symptoms of illness. Unless the applicant has an associated medical problem that would prevent him or her from doing the job, the employer cannot withdraw the offer.
Also, due to the limited ways in which HIV is transmitted (through sexual activity or exposure to blood), most applicants with HIV will not be considered a threat to workplace safety based on that fact alone.
In order to deny employment based on HIV-positive status, there must be a significant risk of substantial harm to those in the workplace; generalizations or unfounded fears are not grounds for rejecting an applicant with HIV. For example, an employer cannot deny an office job to an applicant based on fears that the applicant will get a papercut and transmit HIV to others. Likewise, because HIV is not transmitted through saliva, an employer can’t refuse to hire a firefighter for fear of spreading the disease during mouth-to-mouth resuscitation.
Testing Employees for HIV
When it comes to current employees, an employer may only require a medical test or exam if it has a reasonable belief, based on objective evidence, that the employee is unable to perform the essential functions of the job or poses a direct threat to the health or safety of others.
For example, suppose that Jamie is a construction worker and that his boss learns that he has HIV after reading his Facebook post. Jamie’s employer may not require him to undergo a medical examination based on this information alone.
However, if Jamie has also had a decline in performance, along with fainting spells and fatigue, his employer may have grounds to order a medical exam.
Reasonable Accommodation for HIV
In some cases, the symptoms or effects of HIV or AIDS—or the side effects from medication used to treat the disease—will cause an applicant or employee to be unable to perform the essential functions of the job.
In these situations, the employer has a duty to provide a reasonable accommodation, unless it would cause an undue hardship. An undue hardship under the ADA is one that involves significant difficulty or expense or requires the employer to change the basic nature of the business.
For example, suppose a truck driver needs to take medication in the morning that makes her drowsy. A reasonable accommodation might be to switch her schedule to later in the day or to give her a few weeks off while her doctor adjusts her medications. (Employees who are ill from HIV or AIDS might also be entitled to time off under the FMLA or similar state laws.)
However, the employer would probably not need to spend hundreds of thousands of dollars coming up with a solution or rework its entire business operations in order to accommodate the employee.
If an employee requests a reasonable accommodation, the employer can ask for medical documentation verifying the disability and the need for accommodation. The employer must keep any medical information, including HIV-positive status or an AIDS diagnosis, confidential.
State Laws
Some states have laws specifically prohibiting discrimination against employees with HIV or AIDS. In other states, HIV and AIDS are protected as disabilities under the state’s disability discrimination laws. These state laws might apply to employers with fewer than 15 employees.
Contact an Attorney
If you've experienced employment discrimination based on your HIV status, contact an employment law attorney to discuss your legal options.