A Quick Reality Check on HIV Employment Discrimination

Labor and Employment Blog
December 9, 2013

Q&A: A Quick Reality Check on HIV Employment Discrimination

Iván Espinoza-Madrigal, the legal director of the Center for HIV Law & Policy (CHLP), tells Bloomberg BNA that the Americans with Disabilities Act plays a major role in protecting the rights of people with HIV because "employment discrimination against them is a continuing problem."

In this Q&A, Espinoza-Madrigal explained that the Equal Employment Opportunity Commission's 2011 final regulations implementing the ADA Amendments Acts ensured "that an individual's impairment need not prevent or significantly restrict performance of a 'major life activity' to be considered a disability," he said.  "The regulations clarify that the term 'major life activities' includes major bodily functions, such as the functions of the immune system, and include examples of impairments that presumptively are covered disabilities, such as HIV infection."

In 2010, the CHLP issued a report, titled HIV/AIDS and Employment Discrimination: A Primer, which examined federal and state case laws and statutes related to employment discrimination on the basis of HIV status.

Bloomberg BNA: Name one or two federal court cases, especially EEOC-initiated litigation, that the CHLP is closely following.

Espinoza-Madrigal: We are following the EEOC's lawsuit against a Popeye's Chicken franchise. A Longview, Texas, general manager refused employment to an applicant based on discovery of the applicant's HIV status.

The EEOC made clear in its press release that "[p]ursuing this case is part of the EEOC's overall strategic effort to encourage employers to prevent discrimination by making hiring decisions that are well-informed, rather than snap judgments that are based on myths, fears and stereotypes about people with HIV."

Challenging HIV-related discrimination cases through EEOC or private litigation is critically important to ensure that people living with HIV have employment opportunities, and to combat HIV prejudice, bias, and stigma.

Bloomberg BNA: Besides setting a precedent, what other factors in a case does the CHLP consider when deciding whether to file an amicus brief?

Espinoza-Madrigal: Several factors inform our decision to participate in a case as amicus (friend-of-the-court):  the size or prominence of the defendant or employer, the presence of novel or under-litigated issues, and any case that turns on whether the applicant or employee poses a "direct threat" to herself or others in the course of performing the job duties involved.

CHLP also is particularly interested in cases that involve health care settings, licensing issues, or occupations in which young people, women, people of color, and immigrants are likely to be disproportionately represented.

Bloomberg BNA: In 2013, did you file any amicus briefs in the federal courts addressing HIV employment discrimination?

Espinoza-Madrigal: Not so far, although we are part of a working group assessing alternatives to the current Centers for Disease Control and Prevention's guidelines that perpetuate unnecessary restrictions on health care workers living with HIV.

Bloomberg BNA: Any final thoughts on HIV employment discrimination?

Espinoza-Madrigal: The EEOC's work is important, but the agency only reported 218 HIV-related charges under the ADA in fiscal year 2011, and 200 in 2012.

People living with HIV consistently identify employment as one of their top issues of concern--and also one for which securing legal representation is difficult.

There is a pressing need for greater resources to support skilled, free and reduced fee legal services for the many people with HIV who still experience employment discrimination, particularly through the illegal use of medical inquiries as part of the application process or to screen out people with HIV and other protected health conditions.

LGBT and disability rights legal organizations, in particular, might also consider making their services more readily available to people living with HIV. After all, HIV is one of the most stigmatized health conditions, and HIV discrimination is emblematic of precisely the kind of uninformed, unfounded fear-based reaction to difference and disabilities that the ADA was enacted to address.