Ask Lambda Legal | December 2015
By Kyle Palazzolo, December 2015 Issue.
Dear Ask Lambda Legal,
I’m a nurse, and I love my job. I find nothing more rewarding than taking care of my patients and working with my team. However, I am also living with HIV, a status that I recently disclosed to a coworker. I regret this now, because even though I trust my colleague, I fear word will get out and I will be terminated. Would firing me even be legal? What laws protect me, if any?
Lambda Legal: Except in a few extremely rare circumstances, it is against the law for someone to fire you for being HIV positive.
Your HIV status should not dictate what you can – or cannot – do at work. Instead, your qualifications, talents and commitment to the job determine this.
Some workers with HIV may require accommodations in order to perform a particular job, while others may never experience limitations that affect their ability to work. When health care issues do affect a person’s ability to work, the same rules about how to handle that situation apply regardless of whether the person is HIV positive or HIV negative.
Employers are bound by federal laws, and in some cases, local laws to ensure that HIV-positive workers have job security, privacy, reasonable accommodations (when necessary) and a workplace that is free of harassment.
The main federal law that protects employees living with HIV is the Americans with Disabilities Act (ADA), which prohibits discrimination against people who are disabled or perceived to be disabled in any workplace with at least 15 employees. In 2008, Congress amended the ADA to clarify that its protections extend to people living with HIV.
The Rehabilitation Act of 1973 also prohibits disability discrimination by federal agencies or contractors or by employers that receive federal funding. Under both laws, employers may not refuse to hire and may not terminate a person with a disability unless the disability would prohibit the individual from being able to safely perform the “essential functions” of the job. However, while there are legal protections against employment discrimination based on HIV status, there are also some gaps in what those laws cover.
Even with the legal protections in place, it’s important to be selective about discussing your HIV status and to keep in mind that some co-workers are required to keep your status confidential, while others aren’t. Control over that information can be impossible to regain once it is shared. The best thing is not to be discriminated against in the first place, so think carefully about with whom you share this information.
Lambda Legal recently filed a federal lawsuit on behalf of a flight paramedic who lost his job after informing company management that he had been diagnosed with HIV. By removing him from his position based solely on his HIV-positive status, the company violated Title 1 of the American with Disabilities Act, the Rehabilitation Act of 1973 and state non-discrimination protections. Lambda Legal will continue to fight to end HIV discrimination in workplaces across the country.
For more information, see Lambda Legal’s newest “Know Your Rights” resource, “Know Your Rights: HIV” at lambdalegal.org/know-your-rights.
If you have questions or feel that you have been discriminated against based on your sexual orientation, gender identity or HIV status, contact the Lambda Legal Help Desk at 866-542-8336 or visit lambdalegal.org/help.