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Benefits of Disclosure?
Sep 1, 2000

Is there any benefit of disclosing HIV status to an employer? My supervisor suspects I am HIV+ with very little to go on. I've noticed odd behavior and peculiar confrontation that suggests a "change" in my employment. Should I be documenting these incidents and come clean in case I have to take legal action in the future? I would rather my soon to be termination look like what it really is by having them know without a doubt...unless you advise otherwise.

Response from Ms. Breuer

Please know that this response is based on my fifteen years of advising employers and employees on this kind of question, and is not a lawyer's response. It is advice based on the best and worst outcomes I have seen.

Please involve a lawyer who specializes in disability and discrimination if things get any worse. (Contact your local AIDS service organization for a referral to a lawyer who knows HIV.)

In your case, there can be a real benefit of disclosing your HIV status to your employer. If you can document the disclosure (keep a dated copy of a letter sent to your HR manager), you are in effect putting your employer on notice that you are a person with a disability, and they could face discrimination charges if they fired you without cause. Write the letter and have it in your pocket, but don't send it yet. First:

Your immediate supervisor's behavior is very good reason to take action. I suggest that you make an appointment as soon as you possibly can with your director of HR, or with the officer of the company whose portfolio includes HR issues. Begin the meeting by stating your expectation that the information shared in the meeting will be completely confidential, and come to agreement on that before proceeding. (If the HR person says s/he may have to take some kinds of information to senior management, be clear that you expect to be advised in writing of any intended or actual disclosure of your confidential information to senior management.)

Explain that you have HIV, your supervisor is behaving oddly and expressing suspicion about this, and you want to be clear about your desire to work through this in a positive way with your employer. Ask for copies of all your performance evaluations. Make it clear, in a professional, proactive way, that you know your rights under the Americans with Disabilities Act. Those rights include protection from discrimination if you are indeed a qualified person with a disability who is fulfilling all of the essential functions of your job. Your performance evaluations and other contents of your personnel file are the documentation of that status.

I encourage you to recommend strongly that your employer provide workplace HIV education for all managers and supervisors, at least. I understand your concern that you might feel that HIV education just draws attention to you. I have observed many times that the opposite happens; it draws people's attention to their own risks and strengthens their sense that their employer cares enough about them to put tools for working productively in the age of HIV in their hands. Good workplace HIV education will improve supervisors' skills in managing the whole range of disabilities, so it's a good investment in many ways. In addition, if you were to file a discrimination claim, you may cite attorney Peter Petesch, a partner in the DC law firm Ford & Harrison, who has published an article indicating that simply in responding to the claim -- apart from any actual costs of trial -- your employer will spend about $45,000. Training is cheaper.

At the end of the meeting, put the letter into the HR person's hands and reiterate their responsibility to keep the letter out of your personnel file; it must be stored in your medical file, which only HR has access to. After the meeting, write down everything you recall. Yes, documentation of all exchanges with your employer and your supervisor are an important step now. Always include the date and, if possible, the time. Treat your record of this as a log rather than a diary; assume that it will be read by others if you have to take further steps.

If they genuinely move forward, scheduling HIV education and talking with your manager, you have saved a valuable job. If they do not, your best outcome may be holding onto the job -- and its benefits -- until you can locate one with a better employer. An employer who would allow an employee to be terminated based on suspected HIV status is no prize.

To find high quality workplace HIV education, your employer has these options:

1. contact the CDC's Business Responds to AIDS phone line for a referral: 800-458-5231.

2. e-mail me through this forum and ask for a referral to a good facilitator in your area. Our company has trained facilitators in many parts of the US, and often we can put you in touch with an organization near you that has several good facilitators of workplace HIV education. A general community presentation will not meet your needs. Make sure the provider is prepared to address confidentiality, disclosure, first aid, how to maintain files containing information about an employee's HIV diagnosis, negotiating reasonable accommodation, and compliance with the ADA.

3. Contact the National AIDS Fund and ask for a referral to a competent provider. Their number is 888-234-AIDS.

Please write again and identify yourself as the writer of the previous e-mail if you hit a snag. Strength to you!

Nancy Breuer



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