Charges of HIV Discrimination in the Workplace: The Americans with Disabilities Act in Action

The Americans with Disabilities Act (ADA) is arguably the most important piece of civil rights legislation enacted in the United States in the past 25 years. The objective of safeguarding persons with HIV from discrimination figured prominently in the genesis of ADA and its enactment in 1990. Although drafters of the ADA apparently intended the legislation would protect persons with HIV and AIDS, courts in the mid-1990s began to cast doubt on whether asymptomatic HIV continued to meet the definition of a disability under the Act. In 1998, the United States Supreme Court resolved this question in the affirmative.

The workplace presents special risks for individuals with HIV/AIDS. The hierarchical structures, imbalances in power, and close personal interactions common to most employment situations offer abundant opportunities for discrimination. Title I of the ADA targets the workplace.

Little empirical information exists about how the ADA has actually been used by its intended beneficiaries to redress discrimination. The current study describes the epidemiology of ADA charges alleging employment-related discrimination due to HIV since the inception of ADA in 1991. Using a national database of all HIV discrimination charges filed since 1991, the study treats respondent employers, issues of dispute and outcomes of charges. It then uses multivariate regression analyses to compare the socio-demographic characteristics of charge filers with those of a nationally representative baseline sample of workers with HIV.

Persons who believe they have been discriminated against in their employment begin by filing an administrative charge at an Equal Employment Opportunity Commission (EEOC) or Fair Employment Practices Agencies (FEPA). An ensuing investigation determines whether there is reasonable cause to believe that discrimination has occurred. If there is reasonable cause, the charge is classified as having merit and the agency attempts to begin voluntary resolution between the employee and the employer.

Using the HIV Cost and Services Utilization Study (HCSUS), the authors developed a national probability sampling of persons eligible for sampling. Interviewees who reported having jobs at baseline or at a follow-up interview were classified as workers. These persons comprised the General Base Population (GBP).

Of the 3,520 HIV employment discrimination charges filed through 1999 in this study, 18 percent had merit and 14.1 percent received monetary compensation. HIV charges account for 2.8 percent of ADA enforcement caseloads and 8 percent of all monetary benefits awarded under Title I. Seven states accounted for 55 percent of all charges and three states -- California (11.5 percent), Texas (11.3 percent), and New York (9.6 percent) -- accounted for one-third. About one-third of charges in Pennsylvania and one-quarter of charges in New York were deemed of merit. Nearly 60 percent of all charges alleged discriminatory discharge from employment. The next most common allegations were conditions of employment, harassment and failure to provide reasonable accommodation.

Compared with the GBP, women were underrepresented among charging parties, as were black workers and those aged less than 25 years. Workers aged less than 25 years were approximately one-third as likely as those ages 35-44 to file charges, and those ages 25-34 were three-fourths as likely. Neither the racial nor the income differences observed in unadjusted comparisons with the GBP were statistically significant.

According to the authors, "There are two competing explanations for these discrepancies; each has quite different implications. On the one hand, they may simply reflect lower rates of discrimination (perceived or actual) among workers with HIV who exhibit these particular characteristics.... On the other hand, the discrepancies may signal a lower propensity to seek relief when discrimination occurs."

In summary, the study illustrated the significant extent to which epidemiology can be used to document discrepancies in charges placed and in the under representation of groups covered by this civil rights legislation. "As improved treatments continue to erode the barrier HIV poses to a person's capacity to work, the number of Americans who stand to benefit from effective safeguards against discrimination grows larger." With this study, the authors hope to aid in targeting dissemination, guidance, and support services around anti-discrimination laws towards the groups of workers who need them the most.

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