Fla. Couple’s Lawsuit for HIV Discrimination: Part of Larger Pattern?

by Kilian Melloy

EDGE Staff Reporter

Monday November 29, 2010

Two HIV-positive men in Naples, Florida, are pursuing a claim that they were fired from a restaurant due to their health status. The men's legal counsel is seeking to fast track the case because both men are in declining health.

The case may represent a larger pattern. Another Florida restaurant, this one located in the town of Manalapan, settled a suit brought by the U.S. Equal Employment Opportunity Commission (EEOC) for allegedly forcing an employee out of her job because the woman had a relative with HIV.

Naples residents John Timothy Robertson, 29, and his 36-year-old same-sex life partner, Steven Ray "Forrest" Chaplin, 36, say that they were fired from Ridgway Bar & Grill because of their HIV+ status, local newspaper the Naples Daily News reported on Nov. 26. The eatery says that Robertson was fired because of poor work performance, with Chaplin quitting his job shortly afterwards.

The men's attorney, Matthew Sarelson, is seeking to fast track the suit because the men's health has worsened in the last few months, with Chaplin suffering AIDS-related cancer and Robertson suffering from Kaposi's sarcoma, the news article said.

The suit claims that the men had been noted as "exceptional employees" but also says that when Robertson, who worked as an assistant manager, notified the restaurant's vice president, Suzanne Honeycutt, about their HIV status, Honeycutt expressed concern that they would need time off from work and that their medications would affect their ability on the job. About a month later, the suit alleges, the men began to receive notifications about their work performance. Less than a month after that, the suit says, both men were fired, with the restaurant instructing the staff not to talk about the firings in order to protect the establishment's "reputation."

The Ridgway Bar & Grill website asserts that the establishment's dining experience is "flawless from start to finish."

The restaurant's defense states that the business' "actions toward John Timothy Robertson were based on legitimate non-retaliatory and non-discriminatory reasons completely unrelated to plaintiffs' HIV status," the article reported.

The men complained to the EEOC and filed their suit, which claims that their firing is a violation of the state's Civil Rights Act. Sexual minorities are not protected in Florida, but discrimination due to disability is illegal under both state and federal law. Persons living with HIV are covered under those laws, the article noted.

One reader comment following the story's posting at naplesnews.com read, "My God, why in the world would you put US at risk by working in a food industry?" The comment went on to claim, "your health issues could make innocent people sick!! Anyone in their right mind wouldn't. How selfish of you." Added the posting, "Get a life and find another way to pay your bills, and it's not by filing a lawsuit. Glad you are no longer working there, or we
wouldn't go back, now knowing this. You are sick in the head."

A subsequent post countered, "Sadly this is part of the average person NOT being educated about HIV/Aids. There are NUMEROUS articles by health authorities around the world that there is no known risk nor any cases based on this. Please educate yourself before you pass on this lack of knowledge to other people." The posting said that there are no known cases of food handlers or servers transmitting HIV by handling food, and noted that all food handlers are required to observe safety guidelines.

HIV is not transmitted through casual contact.

A suit brought by the EEOC against another Florida eatery, Callaro's Prime Steak & Seafood in Manalapan, stemmed from that restaurant allegedly demanding that an employee with a HIV+ relative submit to a HIV test. When the employee refused, a Nov. 22 EEOC press release states, "Callaro's made adverse changes to her work schedule and working conditions. Eventually, the company reduced her scheduled hours so much that she was forced to resign," the release adds.

The release goes on to note, "Employment discrimination against a person with a disability, or who is associated with such a person, violates the [Americans with Disabilities Act]," and reported, "In addition to the monetary damages, the four-year consent decree resolving the case enjoins Callaro's from engaging in conduct that discriminates on the basis of association with persons who have HIV or whom it regards as having HIV. The decree enjoins the company from retaliating against anyone who files a discrimination charge or opposes a practice unlawful under the ADA.

"It also requires Callaro's to adopt and distribute an anti-harassment and anti-retaliation policy, train all of its employees on the policy annually, and report all harassment complaints to the EEOC for monitoring for the duration of the decree," the release stated.

"On July 13, 2010, President Barack Obama charged federal agencies to implement the National HIV/AIDS Strategy, one goal of which is to better serve people living with HIV--including by preventing barriers to employment of people with HIV or who are perceived to have HIV," the district director for the EEOC in Miami, Delner Franklin-Thomas, said. "This suit is part of that effort, and highlights the need for companies to take proactive and preventative steps to educate themselves and their employees about the ADA and its prohibition against discrimination on the basis of association with people with disabilities, or on the basis of perceived disabilities."

Said the Miami District Office's regional attorney, Robert Weisberg, "Unfortunately, biases against people who are HIV-positive--and their friends and family--still exist.

"Employers need to be reminded that they violate the law if they take adverse action against people who are HIV-positive or who are associated with an HIV-positive person," Weisberg added. "The EEOC will vigorously enforce the ADA to ensure that people with HIV/AIDS, or who are perceived to have HIV/AIDS, are not denied employment opportunities."

A Feb. 1, 2009, EDGE article reported that despite state and federal laws barring discrimination against individuals with disabilities, including HIV+ status, such discrimination is still widespread. "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" because there are no federal anti-discrimination measures in place to protect GLBTs from workplace bias, noted ACLU AIDS Project attorney Rose Saxe, who went on to tell EDGE, "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."

Added Saxe, ""Usually, employers manage to reveal some information as to why they made the decision. If the only gay person they fired was living with HIV, that suggests their HIV status was the real motivation."

Gay Men's Health Crisis director of legal services said that the issue would be resolved if Congress were to approve legislation banning anti-gay workplace discrimination. Such legislation, known as ENDA (the Employment Non-Discrimination Act) has been introduced almost every year since 1994, according to a Wikipedia article, but while the bill has met with approval in the House of Representatives it has never cleared the United States Senate.

Kilian Melloy serves as EDGE Media Network's Associate Arts Editor and Staff Contributor. His professional memberships include the National Lesbian & Gay Journalists Association, the Boston Online Film Critics Association, The Gay and Lesbian Entertainment Critics Association, and the Boston Theater Critics Association's Elliot Norton Awards Committee.