This Month in HIV: Sex, Privacy and the Law When You're HIV-Positive
An Interview With Catherine Hanssens, Esq., Executive Director of the Center for HIV Law and Policy
Do you think they do?
I do think they do. To the extent that people are aware of them, or that they hear about these prosecutions, where the person with HIV is characterized as the local AIDS monster or boogeyman, it certainly doesn't do anything to reduce the stigma of being tested and being open about your HIV status. In fact, it does exactly the opposite. What it reinforces is that having a record of being tested could be really dangerous. Because if you're HIV positive, and even if you disclose to somebody with whom you then break up with, and who gets vindictive and decides to revise history to the point where all of a sudden you didn't disclose, you can be criminally prosecuted.
But, again, only in certain states.
Well, actually, that's not necessarily true. Remember again, Greg Smith was prosecuted in New Jersey for attempted murder. He wasn't prosecuted under an HIV-specific law. He was prosecuted for attempted murder and he was convicted. He got a 20-year sentence, although what he allegedly did was fight a corrections officer, even though no transmission occurred and he did, in fact, die in prison. Not for nothing should it be noted that Greg was black, and that the corrections officer he allegedly bit was white.
It's been quiet, at least in New York. There haven't been any big, public cases in the last couple of years. Is it just not being covered by newspapers anymore, but it's still occurring? When I heard about these teens in prison in Florida, I was sort of shocked. I wondered how many people are in prison for not disclosing in the United States? Is anyone keeping count of how many people are in prison for HIV-related prosecutions?
I wouldn't say it's impossible; it would take resources to track it. The study that I mentioned that looked at how many prosecutions there have been had a nice grant to focus on that. But we typically hear of these prosecutions if somehow the press hears about it, and it's salacious enough to devote some column inches to it. But because we're not reading about it doesn't mean that it's not happening, any more than the fact that we don't read about disclosures of HIV by this or that public health department necessarily means that it hasn't happened, or it doesn't happen.
These laws are still on the books. They are still out there. Whether or not these things get dusted off depends on a confluence of different factors. Most typically, they tend to be: Who was the alleged victim? Who is the alleged perpetrator? Where is this occurring? Is race a factor? Is class a factor? There are a variety of different factors. One of the factors is not: Is this a major public health event that deserves media attention? Never is that a factor -- almost never is that a factor.
We're talking about a completely preventable disease. Rarely are we talking about actual assault or rape. Overwhelmingly, these prosecutions involve consensual sex.
I always thought it was very interesting that if a woman gets pregnant, they always blame the woman. But if a woman gets HIV from a man, they'll blame the person with HIV.
Again, that depends, doesn't it? I don't think there was much press coverage of this, but one of the women whom Nushawn Williams allegedly infected subsequently became pregnant by another man. I don't know what happened to all the women that were involved, but at least one of them subsequently became pregnant by another man. So what was the lesson that came out of that? Certainly, "protect yourself" wasn't one of the lessons. These were all young women that nobody cared a whole lot about before this whole incident hit the papers. There was a flurry of attention and talk show hosts wanted to have them on and have them talk about this horrible exposure to this monster. Then nobody cared about them again, and that was the end of that. Most of these young women were sexually active before, and they continued to be sexually active, and got pregnant. So what was accomplished, other than putting a young black man behind bars for a longer period of time?
I want to go on and ask you a bunch of other questions about disclosure that have been posed by our listeners. Can you legally be fired for having HIV?
No. The question is: Can you be fired without having legal recourse? Generally, no. If the reason is only that you have HIV, the general answer is no. But have people lost jobs because they are HIV positive, and then subsequently lost their lawsuits about it? Absolutely.
If a health care worker is discovered to be HIV positive and has been fired as a result -- even though you would think the Americans With Disabilities Act and other anti-discrimination laws would prohibit that -- in fact, those people generally lose their lawsuits to get their jobs back. [For more information on these laws, click here.]
There have been cases where it's clear that a person was fired because they had HIV, and yet courts have accommodated the defendants' tortured explanations for why that person was fired. Federal courts have upheld the firing of someone who is HIV positive and was cleaning lettuce in a supermarket, buying the argument that if this person was cleaning lettuce and bled on the produce, it posed a sufficiently significant risk to justify firing this person as posing a direct threat. So there are laws intended to protect people, but unfortunately, the application of the law relies on judges who frequently are no more rational or informed about HIV than the paranoid employers who fire people with HIV.
So, do you have a cause of action? Might you sue? Yes. Do people get fired and wind up not suing? Yes. Why? Because it involves finding someone to represent you, being willing to commit to generally anywhere from many months to years to getting either some kind of compensation for your job loss or the return of your job, and there isn't a guarantee that you will be successful. I think the law isn't as neat and clean a solution to stigma and discrimination as many of us wish, or would like to think, that it is.
You mentioned health care workers before. Isn't it true that it is only health care workers who are required to disclose their status?
Health care workers aren't even required to disclose their status in most states.
Surgeons are not required to disclose their status in most states. Most states -- not all, but most states -- have adopted policies that would require that an HIV-positive health care worker who engages in activities that may transmit the virus consult with a hospital-based committee to review whether any kind of restrictions on practice need to be imposed.
But generally speaking, it's not a required disclosure. A physician in New York is not required to disclose her or his HIV status, regardless of what kind of practice they have, and there isn't any medical or scientific reason for that person to disclose their status.
Similarly, it isn't required for a babysitter, for instance, to disclose their status?
If somebody helps people bathe, or administer medications, it's not required, as well?
No. Again, I believe there are one or two states that require some disclosures of health care workers, but that is not the rule of thumb. Again, those individual states have different laws. So it's really impossible to give sort of a blanket statement about that. But as a general matter, there is not a requirement to disclose in the employment setting.
A lot of people who come to our site have a lot of questions about that. They are worried about becoming nurses, that they won't get into nursing school.
Well, that's a different matter. That doesn't mean that it's legal. But it has happened that there are a number of states that still have on their books prohibitions against individuals with infectious disease or communicable disease becoming masseurs, or barbers -- a variety of different trade schools. The origin of some of these state provisions is HIV specific. The overwhelming majority of them are not. Their origin is to make sure that when you're getting your haircut, it's not by someone with tuberculosis -- that makes some sense.
But these laws have been interpreted by some training schools, and some licensing authorities, to exclude people with HIV, in settings in which there is absolutely no relevance of that, because a person's HIV status does not pose any kind of a risk whatsoever in the profession that they have chosen. That certainly should include health care workers. It should include nurses. It absolutely, without even discussion, should include someone who is attempting to employ themselves giving massages, or being a beautician.
If a prospective employer asks you if you're HIV positive ...
It's illegal. Under the Americans With Disabilities Act, if you are simply being interviewed for a job, it is illegal for someone to ask you questions about your disability, much as it is, under different laws, illegal to ask you about your religion, and so on. Once you have a job offer -- once somebody says, "OK, you're qualified for the job; you've got the job; we just have some questions" -- the questions are acceptable only as long as they are asked of everyone who is applying for that particular job -- or that type of job, with similar job qualifications. Then, once you're employed, those kinds of questions are acceptable, as long as they are relevant to your job.
"Under the Americans With Disabilities Act, if you are simply being interviewed for a job, it is illegal for someone to ask you questions about your disability, much as it is, under different laws, illegal to ask you about your religion, and so on. Once you have a job offer -- once somebody says, 'OK, you're qualified for the job; you've got the job; we just have some questions' -- the questions are acceptable only as long as they are asked of everyone who is applying for that particular job."
If they already have the job, then the information has to be maintained confidentially, and it has to be something that is asked of everybody that comes in. It has to be a consistently asked question, and it cannot be used to then take the job offer back.
But isn't it dangerous in that situation to reveal your status? And, is it necessary?
Well, there are certainly risks, and people don't like doing it. On the other hand, if you already have a job offer and then, all of a sudden, the job offer goes away, you will have fairly powerful proof that the job went away because of your HIV status. Basically the reason that the law and the implementing regulations for the Americans With Disabilities Act allows certain questions, after you have a job. Once you have already received the job, it would be impossible for somebody to dismiss you on the basis of qualifications, because those have already been established. Those kinds of questions are not permissible in the course of an interview, and before you have a job offer, because it would be too easy for someone to then not offer you the job, for reasons that are discriminatory, based on your disability.
If you are working for a company and you are insured by them, could they see what medications you're taking and fire you for that? Or is there some protection against that?
If the company is self-insured, and the program administrator is also related to the company, it's possible that they will see that, yes. But they are required to maintain the confidentiality of that information.
How would you know if they were self-insured?
You can ask. It's not always immediately obvious, because sometimes employers will have an insurance company serve as the administrator of a plan.
I see. But they are required by law to maintain your confidentiality.
It depends. It is possible in some settings that an employer, at an administrative level, will have access to that information in a very broad way. But they are prohibited from disclosing that information. They are required to maintain the confidentiality of it.
As a general practice, that information is confidential, and generally employers do not have access to that.
What is somebody's recourse if any of the following things happen? If their ex-lover sues them for having unprotected sex with them? If their employer fires them? What are people's options?
If you're talking about a disgruntled former partner or lover, it depends on whether it's a criminal case or a civil case. Unfortunately, you're going to need to get a lawyer. What your options are depends on whether you have money or not. But one thing that you can do is go to the Center for HIV Law and Policy's Web site, and go to our resource bank. Then, under the listing for "Legal Services -- Finding a Lawyer," you will see links to different listings of lawyers and agencies that specialize in HIV. [To download a PDF of these resources, click here.] I think, in a criminal prosecution, your first priority is to get a good criminal lawyer. Your second priority is to make sure that your criminal lawyer also knows a lot about HIV or is working closely with someone who knows a lot about HIV, such as a lawyer from the HIV Law Project here in New York, or the ACLU [American Civil Liberties Union], or AIDS Legal Council of Chicago. Those kinds of agencies are excellent at providing backup to a criminal defense lawyer.
Since those cases are relatively rare, if you're talking about employment discrimination, there are a variety of organizations here in New York: Gay Men's Health Crisis, the ACLU, Lambda Legal and the HIV Law Project. And then, a variety of legal service organizations may be able to help you. It depends on the type of case. The larger organizations, such as Lambda Legal and the ACLU, are not direct service organizations. They represent individuals on cases, if it is consistent with their agenda to develop a particular area of law. But there are both HIV-specific organizations and legal service organizations that may be able to help you.
Is this across the country, or just in certain states?
Unfortunately, there are roughly 26 states that do not have a single dedicated HIV legal service organization of any kind. In those states, it's a problem. That again is another reason why, if somebody loses their job, they may not sue about it. Getting representation on an employment discrimination case is not easy, and many lawyers will not take the case for someone who has a relatively low income, because the cost of doing that case will not be matched by the kind of financial recovery that you can anticipate if you win. If you worked at McDonald's, the compensation that you will get for six months of lost wages may not be enough to cover the cost of your lawyer, and the cost of doing the kind of pre-trial work that's necessary to make a case.
So there's little free legal help, really.
There is free legal help, but I would say that the need for those kinds of legal services far outstrips their availability. Lawyers such as I focus on trying to avoid litigation. It's frequently non-lawyers who look to lawyers and the law as the first way to solve a problem. "My boyfriend didn't tell me he was HIV positive. How can I get him in court?"
I think in many cases the wheels of justice grind exceedingly slowly. The goal is to avoid litigation altogether. The goal is to avoid losing your job. Thus, I think the focus then should be on ways to avoid those kinds of predicaments. One way one does that, as an HIV-positive employee, is being reliable. If you think there is going to be a problem, make sure you get on record, before that problem occurs, the employer's knowledge of your HIV status. So, in other words, if you believe that people know about your HIV, and you believe that there may be an ignorant response to that information, what you want to make sure you do is confirm that that person knows.
"I have seen employers who may have no problem with someone's HIV status, per se; they just may have problems when that person needs an accommodation. This is a problem that people with other disabilities encounter. It's not always bias. It's not always fear of HIV. Sometimes, it is an unwillingness to be flexible, a fear of the inconvenience or the cost that accommodating the person with disability may pose."
A frequent defense, when someone is fired for discriminatory reasons in which HIV is involved, is that the employer will say, "Well, I didn't know. I didn't know about this person's HIV status." Or, "It was related to job performance."
So, recordkeeping is really important. Documenting and keeping a written record of exchanges and performance is very important for somebody with HIV -- for somebody with any disability, if they fear that there will be a negative job action, based on bias.
For example, one thing that somebody might do, if they have had a positive exchange, is send an e-mail to their employer saying, "Thank you for meeting with me. Your positive feedback means a lot to me." Or, "I'm glad that you were so satisfied with my work." Those kinds of things are good things to document if you're in an employment situation and you're worried about future bias, should you need a little extra time because of a doctor's visit, or should your health situation change, and you need an accommodation.
I have seen employers who may have no problem with someone's HIV status, per se; they just may have problems when that person needs an accommodation. This is a problem that people with other disabilities encounter. It's not always bias. It's not always fear of HIV. Sometimes, it is an unwillingness to be flexible, a fear of the inconvenience or the cost that accommodating the person with disability may pose.
The best defense is an anticipatory defense ... not necessarily an offense. And that is keeping a record. Making sure that you document good performance, good feedback, positive reception of your work. If you're not doing your job, HIV will not protect you from a negative job action. If your job is being a receptionist and you do a terrible job answering the phone, the fact of your HIV is not going to protect you from a negative job action. All the anti-discrimination laws protect people who are capable of doing their jobs from being removed from their jobs for unfair reasons related to their disability.
Thank you, Catherine. That was great advice. I've afraid we have run out of time. Thank you so much for taking the time to talk to me.
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