Despite Laws, HIV Discrimination Continues in Workplace

by Scott Stiffler
EDGE Media Network Contributor
Sunday Feb 1, 2009

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."

Next: Taking on the Biggest Employer-The Government


  • , 2009-02-01 15:25:53

    That’s a very profound plan, but in today’s GLBT community it will be difficult if next to impossible to achieve.....In order to change discrimination laws you first must deal with our GLBT non-profits who protect the very companies who do not follow discrimination legislation and who condone these cover-ups. Since many of our GLBT non-profit leaders are in essence corporate "lobbyists" /"consultants" now, it will be very difficult to get them to do what is right, especially if they continue to receive thousands in corporate "sponsorships"......... Good luck folks, but you have a long uphill battle around our own community leadership to do what’s right.

  • , 2009-02-08 23:17:31

    I have been reading the ACLU web pages and the John Doe listed above has already been to Iraq in for two years doing security work and the government let him go? So why wont they let him go again? I think this case will be the one to change the views of many!

  • , 2009-02-25 13:26:52

    This is my story. I am HIV negative but I have a disabled adult in the home who has HIV. I was working at Nordstrom in Charlotte, North Carolina. The disabled adult in my home was arrested by store security at Nordstrom. He took something. I believe the store found out aout the disabled adult in my home being HIV positive. A few weeks later I was asked to go to lunch by an older man from the back room. At lunch he told me Nordstrom could not afford to keep its health insurance in the long run. I think they thought I had HIV myself. Later as time went by I was treated poorly and was forced to leave this job. I was then hired by Maersk Line as a temp in Charlotte, North Carolina. One of my co-workers would say to me when I got close to his desk (My Uncle would love to have a disabled person in his house who has HIV). He would get extra money each month. I was latter outed at my job for being gay. I was sent an email about a health screening and donating blood. I was latter told that employes who got screened got hired right away. At another time A man came down from another floor who was in upper management. He told me out of the blue that 1% of employes cost the employer 50% of its health care costs. Why did Maersk think I had HIV. There is a man named SAM who has a group home down the street from me. His nephew is the one that told me at Maersk that his uncle wanted disabled adults who had HIV.(for the Money). This is what goes on in the United States. As a result I have been out of work for 3 years. Jim

  • , 2010-08-15 19:31:34

    This is a very sad situation refering to the post above. I myself was diagnosed with Aids 5 years ago, prior to that I work for 28 yrs and had no issues. Since being diagnosed I have lost my job, been on disability and finally ssdi. Its not the life I would dream of especially at 47 but at least Im alive. being a straight guy its hard to find a support group for HIV pos who arent gay. The isolation discrimination and stigma is very subtle, it starts when you seek medical care then u see the doors close. Its funny to me I have to admit....I worked hard paid taxes and now get money to not work.. The workplace in America is full of morons and backstabbers regardless...the people we work with are not the people we choose to be with which is why the workplace is a competitive and sometimes violent place. HIV discrimination is only one of the problems in America but then working like a dog to make someone else rich or better off is not worth it in the end. People do take advantage of the disabled it is is scarce and a steady income from uncle sam is better than alot have....I makes me angry to see people abuse it but what can I do...Im not interested in saving the world homes and aids associations are all profit oriented and not in place for the health and well being of the advice is to stay close to family and those who care about u...the world is full of greedy people prfessional or not

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