Published February, 1998

EEOC v. Prevo's Family Market, Inc., 135 F.3d 1089 (6th Cir. 1998)

In this opinion, the court of appeals reverses a trial court judgment, and vacates an award of punitive damages, for an HIV-positive employee, Sharp, who was reassigned from his position in a produce department and whose continued employment was conditioned on his submission to a medical examination. Following his termination, Sharp had brought suit under the Americans with Disabilities Act (ADA), which prohibits employees from inquiring into the nature or severity of an employee's disability unless the inquiry is job-related and consistent with business necessity. The Sixth Circuit held that the medical examination was job-related and consistent with business necessity "to protect the health of Sharp, its other employees, and the general public from HIV" and to determine whether Sharp posed a direct threat to the health and safety of other workers and customers. Because Sharp's work in the produce department involved the use of knives and employees often sustained cuts while working, the court of appeals concluded that a medical examination was necessary to determine whether there was a risk of HIV transmission to other workers and to customers.

As Judge Moore's dissent notes, the majority's opinion contradicts public health authorities as well as the intent of the ADA. The ADA requires that employers have relevant objective medical evidence that a food-handling employee poses a direct threat to others before reassigning the employee. Here, the employer obtained no such evidence, demonstrating "that he did so out of fear, prejudice, and ignorance." Moreover, there was no need for the employer to conduct a medical examination to make a direct threat determination because there was ample objective medical evidence from public health authorities and expert testimony that an individual living with HIV working in the food service industry poses no threat of transmission and needs no restriction in employment. Furthermore, it was undisputed that any risk of transmission could have been further reduced with reasonable accommodations such as gloves and separate knives, which expert testimony supported undertaking among all employees to reduce the spread of all infectious diseases.

It is also important to note that the EEOC's guidelines on food service employment make clear that an employee's HIV status alone is not a sound, acceptable basis for hiring or employment assignment decisions.

For a copy of this case, please contact