Despite Laws, HIV Discrimination Continues in Workplace
The question of job protection for LGBT workers looms large in the gay rights struggle. Most U.S. states do not have laws protecting gay workers from being fired--or not hired--because of sexual orientation. Several federal and state laws, however, do forbid discrimination in hiring or termination of the HIV positive.
Despite such protections, people continue to experience workplace discrimination based on their HIV status - sexual orientation notwithstanding. There are numerous cases that indicate a widespread disregard for laws already in place.
Edge recently spoke to three legal experts who advocate for HIV positive workers. With the law on their side, most cases, it seems, can be resolved by educating both employers and employees about their legal rights and obligations. Often, neither side is aware of their status.
Rose Saxe, a staff attorney with the ACLU AIDS Project, says that HIV-positive gay men are particularly vulnerable. "Most employers don't want to say publicly that they fired you because you're gay, but they can use sexual orientation as a pretext to firing an HIV-positive person," she said. "That's a concern."
These two issues "play off each other in an unfortunate way," Saxe observes. Because gay and bisexual men are overwhelmingly represented in terms of those living with HIV, homophobia is at the bottom of a lot of HIV and AIDS discrimination."
That link becomes apparent when the details of a particular case are brought out into the open. "Usually, employers manage to reveal some information as to why they made the decision," Saxe said. "If the only gay person they fired was living with HIV, that suggests their HIV status was the real motivation."
This loophole could easily be closed by a federal law that makes it clear you may not discriminate on the basis of sexual orientation; protections that would ensure fair employment practices for LGBT people and those living with HIV, according to Felix Lopez, director of legal services at Gay Men's Health Crisis. That would go a long way to eliminate some of the situations we run into, even in relatively gay-friendly, liberal New York City and true-blue New York State, where there are comprehensive and very liberal human rights laws.
Lopez is optimistic regarding the possibility of new federal laws and the shoring up of current legislation. "The new administration is committed to the development of a national AIDS strategy," he said. "Part of that has to be federal protections for people who are HIV positive, which would extend to members of the LGBT community."
Making the Disabilities Act Work
Until federal legislation trumps the wildly uneven state-to-state protections, HIV positive people have the Americans with Disabilities Act. ADA may present the best-case scenario of discouraging discrimination and providing legal recourse when it does happen.
Even so, the act has its limitations. "The ADA covers employers with fifteen or more employees," Saxe pointed out. "And some state laws cover smaller employees as well."
TADA does not mention any disabling condition by name. Nevertheless, it has widely been interpreted to include those with HIV, because their status qualifies as a disabling condition that can impair major life activity. Saxe also points out that a 2008 clarification to the law identified "things like immune function as part of major life activities."
That clarification occurred in response to a series of Supreme Court decisions that Saxe said "unduly narrowed the scope that Congress meant the ADA to cover."
But when the employer is the U.S. government, the ADA protections are overshadowed by the shadowy machinations of contracts that seek to bar the HIV positive by classifying them as risks to fellow employees--and, by extension, national security.
The ACLU recently filed a lawsuit that charges the U.S. State Department discriminated against a former veteran because he has HIV. In 2005, government contractor Triple Canopy accepted "John Doe" to provide personal security for the U.S. Embassy in Haiti. The day before graduating from his training program, he was let go "because the State Department would not allow workers with HIV to be deployed oversees," according to published reports.
The ACLU maintains that the State Department's contract, which required a negative HIV test for all employees, violates the Rehabilitation Act and the Americans for Disabilities Act. The contract also lists "suggested physical standards," which include a requirement that all contractor personnel be "free from communicable disease."