Although recent strides have been made by the LGBTQ community and its advocates, HIV discrimination and stigma continue to present particularly significant barriers to many important aspects of living, including employment, housing, healthcare, and access to public accommodations for LGBTQ individuals. Federal, state and local laws expressly prohibit discrimination against LGBTQ individuals and those with HIV in various contexts.
The primary federal law that prohibits discrimination in the private sector based on HIV status is the Americans with Disabilities Act (ADA). In Bragdon v. Abbot, the Supreme Court ruled that Congress intended for infection with HIV to be included as a disability under the ADA. The ADA applies even if you are only perceived to be HIV-positive and also if you are asymptomatic.
The ADA provides protections in workplaces with 15 or more employees. You are protected by the ADA if you meet legitimate employment requirements and are able to perform essential job duties with or without reasonable accommodation. Moreover, if you are HIV positive, you are entitled to ask for reasonable, necessary accommodations to perform your job, plus request time off to seek medical care.
If you think you were discriminated against based on your HIV status, you can file a complaint with the nearest Equal Employment Opportunity Commission (EEOC) Office within 180 days of the event you believe was discriminatory. In some cases, the EEOC will investigate and try to correct the discrimination, while in other cases it may issue a right to sue letter. The ADA is complex, and it is wise to consult an employment litigation attorney before commencing suit.
As an employee concerned about discrimination on the basis of HIV status, you should also consider whether there are any collective bargaining agreements in place. Sometimes these agreements prohibit discrimination on the basis of HIV status, sexual orientation, or gender identity. In other cases, they provide blanket protection from being fired or other adverse actions except where there is “cause.”
Where state and city laws provide express protections against discrimination on the basis of HIV status, they generally protect those who work for smaller employers (with 15 or fewer employees). However, often they give workers more protection than what is offered under the ADA and the Rehabilitation Act.
In some cases, employers associated with religious institutions may be exempted. Generally, if a religious institution is publicly funded, it can only continue to receive funds from the government if it agrees to comply with nondiscrimination laws, including those that prohibit discrimination on the basis of HIV status, gender identity, or sexual orientation.
It is rare for an employee to prevail under common law tort theories in the context of discrimination. However, in some cases, you may be able to assert defamation, breach of the covenant of good faith and fair dealing, wrongful termination in violation of public policy, infliction of emotional distress, or interference with contract in the context of discrimination. You should consult a litigator experienced in these types of claims if you believe you have grounds to sue. Additionally, if you suffer emotional injuries as a result of severe harassment based on your HIV status, you may be able to recover compensation through your state’s workers’ compensation laws.
Public Accommodations and Housing Discrimination
In addition to prohibiting employment discrimination, the ADA also provides civil rights protection and equal opportunities in the areas of public accommodations, transportation, state and local government service and telecommunications. For example, the ADA requires public accommodations to remove any barriers to accessing facilities if it is affordable to do so and access is easily accomplished. In some cases, those with symptomatic HIV may have less ability to open a door, or they might become more quickly fatigued, so they may use wheelchairs or other devices for improved mobility.
The Fair Housing Amendments Act of 1988 prohibits discrimination against those with disabilities, such as individuals who are HIV positive, in the context of housing. The Fair Housing and Equal Opportunity Office (part of the United States Department of Housing and Urban Development) enforces this law.
Some states and cities also have laws that expressly protect those with HIV from employment, housing, and public accommodations discrimination. Public accommodations include any entities that provide goods or services to the public, such as homeless shelters, retail stores, and daycares.
Healthcare access for those with HIV has been improved by the Affordable Care Act’s (ACA) provisions prohibiting insurers from denying coverage on the basis of pre-existing conditions. Although other obstacles remain, insurers can no longer discriminate against those that are HIV positive. The Health Insurance Portability and Accountability Act of 1996 (HIPAA) was designed to protect patient privacy. However, in providing greater patient control over disclosure and use of their medical information to patients, it also helps to prevent discrimination against those with HIV.