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Discrimination and HIV

December 2010

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Table of Contents


HIV and Discrimination

Many HIV+ people encounter legal problems associated with their health status. Occasionally HIV+ people face discrimination in employment, housing, and medical care. Fortunately, there are numerous legal protections from these types of discrimination.

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Protections Against Employment Discrimination

HIV+ people are protected from employment discrimination by federal law and in many cases by state and local laws too. Under these laws, if an HIV+ person is qualified to do the job and can perform the essential functions of the job, an employer cannot reject, terminate, demote, or deny promotions to an HIV+ employee or job applicant because of his or her HIV status. Additionally, an employer cannot harass or mistreat an HIV+ employee because of prejudice or fears of the employer, supervisor, co-workers, or customers.

The Americans With Disabilities Act

The Americans with Disabilities Act (ADA) is the most important federal protection from employment discrimination for HIV+ people. This law states that employers with at least 15 employees cannot fire, demote, or refuse to hire a person on account of his or her disability or the perception that he or she has a disability. Under the law, HIV+ persons are considered disabled. In 2008, the ADA was amended to broaden its scope and protections, making it easier for people with HIV to show that they are disabled. In addition, employers can no longer take mitigating measures (e.g., the positive effects of medication) into consideration in determining whether someone is disabled; in other words, your ability to cope with HIV-related symptoms does not affect your status as disabled within the ADA.

Employment Rights Under the ADA

The following rights may apply to employees or job applicants working for employers with 15 or more employees:

  • An interviewer cannot ask a job applicant if he or she is HIV+
  • An employer cannot refuse to hire a qualified candidate on account of his or her HIV+ status, unless the employee would pose a direct threat or significant health risk to co-workers or members of the public. However, there are only a few professions, such as surgeon, where an HIV+ person might pose a health risk as an employee.
  • Employers cannot ask job applicants to take a medical test unless they have already offered the job and only if everyone applying for the job has to take the same test. The employer cannot withdraw a job offer based on the results of the HIV test, unless being HIV+ would prevent the employee from doing the job.
  • All information about an HIV+ employee's health condition must be kept confidential and may only be revealed to people in the company with a need to know. For example, the company nurse may have a need to know about the specific health conditions of employees.

Reasonable Accomodation Under the ADA

A reasonable accommodation is a change in workplace or routine that enables a disabled person to do his or her job. A person with a disability may be entitled to a reasonable accommodation if he or she can still perform the essential functions of the job as long as the accommodation is made. For example, reasonable accommodation for an HIV+ person might be more flexible hours or time off to visit the doctor.

  • You have to request a reasonable accommodation in order to get one. Often, the employee will have to notify the employer of the specific health condition leading to the disability. The employer must keep this information confidential, and can only reveal it to people in the company with a need to know.
  • The employer does not have to offer you the accommodation you request if it would cause "undue hardship." For example, a small employer does not have to offer an accommodation if it would be too expensive for the company.

Local and State Law

Even if you work for an employer with less than 15 employees, you may be protected against discrimination by state and local laws. Most states and cities have laws prohibiting employment discrimination against HIV+ persons. Often these laws apply to all employers in the relevant state or city, without regard to the number of employees. For more information about state and local anti-discrimination laws, contact a legal services organization in your community.

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This article was provided by The Well Project. Visit The Well Project's Web site to learn more about their resources and initiatives for women living with HIV. The Well Project shares its content with TheBody.com to ensure all people have access to the highest quality treatment information available. The Well Project receives no advertising revenue from TheBody.com or the advertisers on this site. No advertiser on this site has any editorial input into The Well Project's content.
 
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