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I have read that have no obligation to disclose my HIV statis...
Oct 13, 2004

I have read that have no obligation to disclose my health condition to my employer. By doing that, I think I was fired from my last job for HIV discrimination.

I have been living with HIV, asymptomatic, for about 5 years now. In my past jobs since I found out I was HIV, all would tell them is I had a serious medical condition that caused me to be on some medications that like to mess with my system, and I would need additional time off work to go to the doctor, or to have extra time during my lunch break to go to the doctors appointments. I had never told them that I was HIV+, that I had a disability, or that I need a reasonable accommodation for the job I was assigned to do. This was never a problem till I got my last job.

A bank employed me, for about 9 months, from a referral from a friend, who became my departments supervisor. I had asked her not to disused my HIV stasis with the company, other then I had a serious medical condition. During my job interview, I had told the department manager had a serious medical condition that caused me to be on some medications, and I would need additional time off work to go to the doctor.

She started to ask a question to effect of what that medical condition was, but the look on my face stopped heras if she knew I knew it was illegal for her to ask that question. To avoid being bullied into saying more about my condition, I said to her that I have a compromised immune system, (kicking myself later, I thought it would be a dead giveaway) so it was easy for me to get sick. Her response to that was: Well, in my department, I (not the company) do not allow personal time off. So, just dont get sick. Thats it. No questions about if this medical condition was a disability or if I needed reasonable accommodations. The next week they hired me.

I had been working as retail sales / assistant manager / manager for about 14 years, so going into a corporate structure for me was a difficult change. I was so used to public customer service interaction. It was so different to the segmented work environments the departments were in and management/company communication sent thought email. I was brought into this position as a data entry clerk. Having my bachelor degree in graphic design, I knew the computer systems well enough not to need training in usage, but needed training on how the information was to be entered, which paperwork need to be where, etc. I was told from management and coworkers, that it was normal that a large company such as the one I was working for did not have a formal training manual. I would have to personally seek out the correct way of doing the work, from coworkers and management and that I was in a learn as you go type position. I have a very strong work ethic, and even the stress of the working conditions, being hired at a large volume time, I pressed on and tried to absorb as much as I could. I started to make my own manual.

I passed my 90-day performance review, from the assistant department manager (the department manager was out on maternity leave). When we were in conference about it, I stuck me as odd that I was getting performance evaluation from her, someone that I have only see in my department physically see me working for 5 minutes, rather then my departments supervisor, whom I worked side by side daily learning as much as I could. On the evaluation, she made the comment that I need to come in on time, and we made a written agreement afterwards to have me work hours that are better for me to drive in traffic. Also, I had missed some days, and still being in my 90-day probation, it was frowned upon. Again, I had disclosed to her that I had a serious medical condition, and the time off was used for appointments. She told me that this was ok and the time off would have to be written up as unpaid time off, and that I could use my PTO hours for this time off when available. She did not ask any other questions.

A month or so later, I went down to the HR department to talk about moving into another position within the company. I had met with the VP, and had told her had a serious medical condition that caused me to be on some medications, and I would need additional time off work to go to the doctor. I liked working for this company, and was wondering if there was another position closer to where I was living. Even with the agreement of the new work hours, I was having issues with driving in heavy traffic to get to and from work. Or even a graphic design department that I could transfer into to utilize my degree that was only gathering dust on my wall at home. She said it was company policy that I had to be on the job for 6 months, after my 90-day review, till I could transfer out of present department, and gave me more information on to whom I need to chat with. I deiced to hang on to the current position I had and wait until my 6 months were up. I thought I was doing the right thing about disclosure to the company. HR did not ask questions about if this medical condition was a disability or if I needed reasonable accommodations.

During this time, I had the opportunity to change health insurance, and even though I had not disused my HIV status with anyone in the company, other then my supervisor friend, and I disclosed my HIV stasis on the insurance application, to get my medication covered. On personal breaks allowed by the company, I called my doctor, and after being put on hold, the offices hold message announced that the clinic was for people dealing with HIV.

Now, that would not bother me, because no one else could hear the message, But an email was sent around stating that your phone calls might be recorded for company purposes, and that personal use of the phone/internet was too lax and certain restrictions to internet were in place: shopping online, online games, downloading porn, playing the stock market, etc were restricted. This too was to be monitored. Once, I called the doctor referral line, as recommended by my manager, to find a doctor closer to my job, and that I could make appointments during my lunch hour. I hated to do it at work, but I was over due in getting my lab work done, and the offices I was calling closed around the same time as I was getting of work. All though I cannot prove it, I feel someone might have over heard me, or even I was monitored during these phone calls or the medical website I was looking up on the Internet, both during approved break times.

This is when it really hit the fan.

My first real issue of harassment was shortly after I had switch doctors, and had to take personal days off with PTO hours due to personal illness. From the statements from the department manager, it was never an appropriate time to have time off of work. No one in our department was happy to ask for time off or to go on vacation. It seamed I was frowned upon for leaving the office to go and pick up something for lunch. The company had a café down stairs, but after getting ill from eating there more then twice by food handling issues with cooking staff, which was addressed to the company, by email from the restaurant manager. I was having stress related issues with my health: headaches, back pain, stomach cramps: all my classic signs that I was under too much stress.

The office area I was in is one floor, and each department is sectioned off with cubical walls that are only waist high, so overhearing someones conversation was not hard to do.

Another employee was very upset, and announced to our department, loudly: I am gong to rip this fagot a new asshole! It was loud enough to be heard by most of the people on our floor. He proceeded to further announce what the problem was and no one said anything to him, just letting him vent his frustration. On and on he went, when I heard another employee say, under her breath but still loud enough to be heard, I wish he would shut up about that, then the office went back into its normal routine. A few minutes later, the offending employee announced again, You got to look what this guy wrote meHey dude, so sorry about being fagot-like about this issue butblahblahblah.

I was floored. How could anyone, in a multi million dolor business that my position in this company was in, allow such horrible, rude, and unprofessional language to be tolerated?

I looked over the assistant mangers cube, and she was gone for the day. The departments manager was still out on maternity leave. My supervisor friend was swamped under a mountain of paperwork, so I waited until break time and asked her about it. She was on the phone, and could not pay attention to what was going on. I asked if this was an issue I should bring up with HR, she said yes, if I felt so strongly about it. Later that day, I wrote a letter to HR, stating that I have an issue of harassment and that I wanted to discuss this with them in confidence.

I had to send this mail 3 times, before the VP of HR responded back to me. We made an appointment, and I told of the incident, the lack of management, professionalism, training in the department, and I wanted to be moved into another position that was less stressfull for me.

Her first question was Well, Are you gay?

I was floored! My response, Thats not the point and told her at it was not an issue of being gay or not gay, that that a larger issue was at hand. Not only was I offended, I knew some of the people in our department are religious, and that I knew such fowl language was an insult, especially in a professional work environment.

I went on and gave recommendations: 1. Have the employee write an email apologizing to all our department of his actions 2. Have the employee go though and pass a stress reduction/anger management/gay sensitivity training class 3. Have my department go though stress reduction class 4. Have the manger review what caused this to happen in the first place and send a company wide email alerting other managers for the problem and how it was resolved.

The VP just smiled and kept nodded her head, as if to pacify a disgruntle worker and she had better things to deal with. I again asked to me moved into another position within the company with better working conditions. I also stated, again, that I had a serious medical condition that caused me to be on some medications, and I would need additional time off work to go to the doctor. She again stated my 6 months were not up yet and I would have to wait until then to apply for an open position. I went back to work feeling better that I got my concerns out, but still had a nagging feeling that my issues were not going to be full addressed. But also, she did not ask questions about if this medical condition was a disability or if I needed reasonable accommodations. I went back to work, and sent her an email saying thank you for letting me talk to her. She wrote back that the company was addressing my concerns, my name has not been given to anyone, and that if I heard anymore inappropriate conversations, I should bring them to her attention.

Later that week, the offending employee received a phone call and moved it into one of the meeting rooms, and was chewed out. After a few weeks, it was found out that I went down to HR to complain about the outburst. Of course, it was never directly brought up in conversation with my co-workers, but somehow they knew. Again the stress level was building in me and I took more time off, no more then 2 or 3 times a month, all single day and covered by my PTO hours. Nothing was ever said or done about the recommendations I made to HR.

The next harassment issue was when my company had an open house for potential customers from the local business district. The owner of the company told us to stop working during business hours, silently, line up single file against the wall, as the future clients walked though the building, then leaves. This did not bother me at first. But when a email was sent out by another VP of the company, giving details of the scheduled events, they had wrote at the bottom that she would see us all tomorrow for pets on parade

Is this how corporate American treats its valued employees? So, I sent an email to HR, and stated I was offended by this email, and so were some other coworkers. I was not a pet. She wrote me back and asked what found offeive about it and that I should discuss my concerns with the author of the email or my supervisor.

But did she not tell me that I should direct all my concerns to her, rather then take matters into my own hands and confront one of the main officers and/or owner of the company? And what about the strange feeling of being lined up against the wall? During this preceding, a coworker leaned over to me and whispered to me Doesnt this remind you of something? Then it had dawned on me. The scene before me had started to have a tone of the raids against the Jews during the Nazi occupation. I felt I was loosing my mind dealing with all this. I wrote back to her and told her in more detail that I had a problem with. Then I did not get a response back from HR, I just kept my head down and did not say anything to anyone and tried my best not to miss any more days.

Within a moth or two later, I started training myself in other areas of my department. I did not want to stay in data entry forever, so I had asked my supervisor to give me more areas to expand on and learn what she does. I had asked the assistant manager if it would be possible to move into a position on her side the department, but was denied because of the only reason that it would take me too long to be trained on how to do the paperwork, and in a few months, we were going to switch to a new system anyway. I was very upset by this, especially when a guy who basically did the same job and was hired the same time as I was, got a promotion. Personally, once the department found out he was having triplets, I think this promotion was created just for him. Eventually my departments manager came back from being on maternity leave.

A month or so later, she called me into her office and said that she needed me to sign something. It was an employee counseling form. I was being written up: I was to agree to call her directly to request or sick day approval, rather then call my supervisor or asst. manager 2. That I was to work my set scheduleShe was totally unaware that I had made a better arrangement with the asst. manager months before to come in an hour and leave an hour early to beat the traffic. She agreed that this was acceptable 3. I would not be allowed to take anymore excused/unpaid time off or to go into negative PTO hours.

I could not understand why the first time in my 20-year history of working was I being written up, over time off that was approved by the manager in charge. I had stated to her that I had had a serious medical condition that caused me to be on some medications, and I would need additional time off work to go to the doctor. I had asked if this was a problem, why wasnt taken care of within the first 90 days of my performance, and why did I have approval from the manager in charge and HR to take these times off? Her response to this was Well, this is now, and I cant have you missing all these days. And by the way what is your illness anyway?

I saw red.

I told her that I did not feel comfortable talking with her alone and that I wanted a third party in this discussion. So we went down stairs, and my manager, the VP of HR and myself had a discussion. I stated, AGAIN, had a serious medical condition that caused me to be on some medications, and I would need additional time off work to go to the doctor. If the company had a problem with this, why did they hire me in the first place? That the reason I was there then, was that I knew it was illegal for my employer to ask questions about my illness, and felt my concerns of harassment were not take care of. The VP, gets mad, and states, I told you that I took care of THAT issue, and as far as the other issue, you were the only one in the whole company that had a problem with that email.

I had stated that it wasnt true, I was the only one who that the nerve to stand up on what I thought was right. My department manager had no clue what so ever about any of this. Again we went round and round about me missing days because of illness, and nothing was asked of me to provide paperwork about my illness, or if I needed accommodation. Totally frustrated, I wrote on the employee counseling form that I was signing this form under protest, that the days I took off were a medical necessity, that this form should not have been written, but simple email about my work evaluation should have been sent.

A couple of days later, I was called into my managers office, and was asked to resign the employee counseling form, that the times I was to work was not correct on the first one. When I asked what happened to their copy of the original form, she stated that HR had lost it. but that was ok, that this was an amendment, and all I need to do was sign it. So I signed it and went back to work, thinking everthing was ok.

Later that day, my manager came up to me and asked if I had the original employee counseling form. I told her it was at home. She said ok, and asked me to bring it in so HR would have the original copy. When I was getting my degree, I took a business law class. One of the first things that I had learned is to read what ever you sign, and to keep all of the originals. I did not wan to sign this form, but there is a claim in the emploee handbook that states if an emplyee dos not sign it, it does not matter, as long as another manager signs it with the employee's manager. Something sent up a red flag when she had asked me for the original employee counseling form.

So, I was on probation with my job, and I accepted it. I work my tail off and started to be crossed trained in other areas of my department. I was getting recognized my managers, supervisor, clients and co-workers on my adaptation to learning how to do a job position that was not in my current job. I was doing data entry; along with some other heavy duty paperwork, but having it checked my coworkers for corrections before it went out to the clients. I felt I was being groomed for a higher position. One of my coworkers, in said higher position, was leaving to another company. I wrote a quick email to my manager and stated I was already doing the job on top of my current job duties, and I was not getting paid for it or have the title. With the employee leaving, I was wondering if I could move into that vacant spot.

Her response was I dont feel comfortable in offering you this position due to your absentee history. Thats it. Period. I wrote her back and stated that during my pre-employment interview about my medical issues, and that I had not received a definite anwancer from her other then not to miss a lot of days, and all the major issues stated above. Her response was that I could apply for any open position offered by our bank. And that she would make a decision for the next qualified person for the position solely on qualifications and business needs, and that if I did not feel comfortable to find another job, whether it fell within or outside the bank.

I was so upset. I wrote her due her response, or lack there of, felt ill and needed to leave for the day (3 hours of work to go on a very slow day). Her response to that was Im sorry to hear that. Will you be coming back tomorrow?

I kept working as silently as possible after that. I was asked by the department manager to use my graphic design skills and to put together a federal compliance notebook, with the detailed explanation and visual screen shots of the programs I use in the position of data entry. I said I would, to make points with my boss, and to flex my design muscle. So here I was going graphic design work, which I usually charge $50 an hour for freelance, and the regular work schedule of doing a job that was higher then me, but being hired/paid as a date entry clerk.

Eventually they hired someone to fill the vacant spot, and were asked by management to try and help out this new person as best I could, basically teach them everything I had learned. I was now a trainer also.

About a month a go, I was getting ready for work, bent over and threw my back out. The pain was so bad, I was seeing stars and thought it might have been kidney stones. I called in and told my manager what was going on. I then went to the ER and was told it was a strained back and to stay off my feet for a week, and got a doctors note stating this. Was not worried about taking time off because my PTO hours would cover it, and I had a doctors note. I called in and had approval from my manager to take the time off. A week later I was still in a lot of pain, to the point I could not function without painkillers. I went to my regular doctor on the last day-covered by my doctors note, and got another one to excuse me from work for another week. I called the manager and informed what was going on. She said it was fine and she would see me when I got better.

On the first of the month, I received a call at home, after normal working hours, from my manager. She stated to me because of my time off, that I had two choices: that I could resign from the company, with a chance of being rehired, or to be involuntary terminated, with no chance in getting rehired. I went round and round with her telling her of my medical condition and said above issues. All she wanted and kept pressuring me was to give her an anwncer right then, over the phone on what I wanted to do. No time to think about it rationally or sober from the painkillers. The day she was calling, my PTO hours had already gone negative, and that was in violation of the companys time off policy. I had found out later they had cut of my insurance the day before. I asked if these days could not have been written up as personal time of without pay, and she said no, because she, not the company, did not grant personal time off.

I got upset, and asked for a conference call with the VP of HR. The VP gets on the phone with the manager and it was so nerve racking. Over and over they kept telling my only options were I could resign from the company, or to be involuntary terminated, that I could not come back to work due to my negative PTO hours, and I was not eligible for FMLA due to being there less then a year. When I asked about short terminality, it was stated again, I could not have that because to my negative PTO hours, and there would be no way I could work extra hours to make it up (even though it was common to work overtime in my department), and they would send the paperwork anyway along with FMLA information. Once more I had told them I had a serious medical condition and that because of the sigma of the condition, that it was a disablity, I was not comfortable talking about it with my employer. Then the VP asked if I had any paperwork documenting this condition. I said no, that the company had never asked me for the paperwork within the 9 months that I worked there. Then she said, Well, its your responsibility if you have a disability to inform us. There is nothing we can do about it now. You need to make a choice of being fired or to resign.

I was beside myself. The VP got off the line, and again, I asked my manager if I could have a day or two to think about it. She said no. So, in a fog of depression, I told her to put me down as resigning. She said ok and that was it.

I called a friend of mine, who was paralegal, and she told me to call them back, to take back my verbal agreement, and state that I wanted to be involuntary terminated. She also said, because of the no personal time off by the manager and not being able to work off my negative PTO hours, and calling me at home after working hours, it was a constructive discharge. They were making it impossable for me to dig myself out of the hole I was in. She also informed me to call the EEOC and to look up the ADA website.

After looking up and seeing this new information, I was curious if I did the right thing by stating my HIV stats/disability as a serious medical condition that caused me to be on medications, and I would need additional time off work to go to the doctor, rather then telling them I had a disability and need accommodation. I called my manager back, got her voice mail, of cource, and told her that I wanted to be involuntary terminated, rather then resign. The next day, I talked to my supervisor friend, and she told me my department manager has sent out a mass email telling everyone I had resigned.

I called HR and had it out with her telling her to make sure I was involuntary terminated, and that any further communication from the company needed to be in writing.

So I went to EEOC and filed my complaint. During the interview, the interviewer got up and came back with a book. She read to me a case of someone that was fired with a disability. The woman had not told the company that she was bi-polar when the company asked what the medical condition was. Therefore, she did not have a right to sue. It was not stated if the woman stated she was ill or not beforehand, like I had done.

Is this the same case with my situation? Did I do the right thing by over and over telling the company that I had a serious medical condition, and not a disability covered by ADA?

Like I said, I have filed my complaint with the EEOC and have copies of all the emails stated above, along with the signed evaluation and most of the PTO request forms signed by the managers.

And then there is a case of Arizona being a right to work state, by my understanding, the company has the right to fire you for any reason.

Is there anything else I can do, or do I just wait until I hear from the EEOC? Any information would be very helpful. Thank you.

Response from Ms. Breuer

Your persistence is amazing. Please remember: health first, job second. These do not sound like pleasant people to work for, and I'm a bit baffled about why you worked so hard to stay. You did a LOT of things right.

Here are the red flags I saw in your story: you absolutely did the right thing in refusing to identify your diagnosis. I salute you for your courage and determination. Many others would have crumbled. But they have a point about identifying yourself as being covered by the ADA. They cannot be required to guess.

Here's how I would recommend that you identify yourself as covered by the ADA. It achieves some other goals, too:

Talk with your doc about the essential functions of the job. Identify an accommodation that would allow you to fulfill all of the essential functions (such as: time off for medical appointments, with the understanding that you'll make up the work within X days of missing work time). Have the doc write up the request rather than making the request alone, unsupported by a doc's corroboration that you need the accommodation. Demonstrate your willingness to make up time lost.

That approach is professional, discreet and shows you to be aware of the employer's needs as well as your own. It puts the onus of asking for an accommodation on your doc, not on you. And nothing your doc writes or you say ever identifies your diagnosis.

That's about all I can say at this point--I might have been able to suggest more at an earlier point in this story. If things do not work out with these meanies, try it next time. I wish you well.

Does ADA allow forced transfer of employees?
HIV positive deli-worker asked to switch jobs

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