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discrimination at work?

Mar 24, 2012

When I became really ill at work due to med change, I disclosed my status. Since then, I have been asked to sign a medical release form allowing my employer to talk with my doctor, have been taken off 4 shifts, and now am being asked to provide information on HIV, was told I would be taken off the schedule if information isn't provided. I am meeting tomorrow with the Minnesota AIDs Project lawyers and my case worker. My Dr. informed me about all the illegal implications that have arose from this situation. I will say this, my boss has said that she is just trying to protect her business ( a restaurant ), her employees and customers....

Response from Ms. Douaihy

Dear Writer,

Thank you for writing in to ask whether you experienced discrimination at work. First, allow me to provide some legal background. As an employee living with HIV you are eligible for protections, rights and remedies under the Americans with Disabilities Act. With respect to employment, the ADA holds that as long as you can perform essential tasks and duties of your job, your employer has no right to treat you differently solely due to your status. If, for some reason, you can't carry out essential job functions because of a medical impairment, you are generally entitled to a Reasonable Accommodation. A Reasonable Accommodation modifies your job in recognition of your impairment (and the limitations thereof) allowing you to do your job successfully. In addition, an employer generally has no authority to communicate with the doctor of an employee. Only where there is a direct nexus between an employee's medical condition and his job may an employer even raise the issue.

Now to answer your question. Depriving you of work shifts because of your HIV status is discriminatory and illegal as long as you can otherwise carry out essential job functions (with or without a Reasonable Accommodation). Moreover, your failure to provide information about HIV is not your obligation and you cannot be retaliated against for failure to provide such. It sounds like your employer is acting from a place of ignorance about anti-discrimination laws and HIV in general. HIV positive employees are not a threat to restaurant co-workers or customers and an employer may not engage in deferential treatment in the guise of "protecting her business".

You have several options if you desire redress. Your first stop should be the Equal Employment Opportunity Commission. Your right to be free from job discrimination is enforced by the EEOC where an employer has 15 or more employees. If you choose to bring a claim of discrimination against your employer, and there are 15 or more employees, you or your attorney should contact the EEOC straight away. You may also avail yourself of state and/or local anti-discrimination law remedies depending on which state you live. Be aware that all protective laws have a statute of limitations within which you must act. (For example, the EEOC requires claims be initiated within 180 days of the discrimination or within 300 days if your locality or state has a concurrent anti-discrimination law). On a positive note, it is encouraging to read about support you received from your doctor. Doctors and medical personnel are critical partners in the fight against HIV animus. We are all in this together! I wish you much luck in this process.

risks on living with someone with hiv
to disclose or not to disclose

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