HIV Discrimination in the Workplace: Know Your Rights

Employment can be another area of life where people living with HIV face discrimination. Fortunately, a variety of federal, state, and local laws provide protection against wrongful dismissal and bias in hiring, promotion, training, wages, and benefits.^1-2

What is the Americans with Disabilities Act (ADA)?

The Americans with Disabilities Act (ADA) protects all Americans from workplace discrimination based on mental and physical health issues, including HIV and AIDS. HIV and AIDS qualify as a disability under the ADA, even if the person shows no visible signs of illness. This applies to whether the person is HIV-positive, is perceived to be HIV-positive, or has AIDS.

Protections under the ADA

The ADA applies to all businesses with 15 or more employees and all government employers. Some of the details about the ADA include:

• A person is protected if they meet legitimate employment requirements, and can perform the essential functions of the job, with or without reasonable accommodation.
• A company can take health and safety matters into account when making employment decisions, but HIV transmission is rarely considered a real threat to safety.
• An employer is prohibited from asking about HIV status.
• If any medical information, including HIV status, is disclosed in the process of asking for an accommodation, that information must remain confidential.¹

What are the main kinds of workplace discrimination?

Continuing misinformation and stigma can fuel all sorts of discriminatory practices in the workplace. Most discrimination related to employment fall into one of six categories:

1. Hiring and promotion
2. Hostile environment
3. Wrongful termination
4. Sexual harassment
5. Targeting gender identity or expression
6. Violations of privacy

Some real-world examples include ostracism from the team, revealing private medical information, or using downsizing or layoffs as an excuse to target certain employees based on personal characteristics.

Reasonable accommodations under the ADA

Many people living with HIV may not need to make special requests for workplace accommodations in order to perform essential functions of their job; however, some people may. Common examples of reasonable accommodations for anyone with a chronic condition might include time off for a doctor’s visit, a flexible start time if the person needs extra time getting ready for work, or changes to non-essential job duties.

Reasonable accommodations are not always clear cut

What qualifies as a reasonable accommodation is not always clear cut. It depends on many factors, including the essential functions of the job, and whether the accommodation is too expensive or too difficult to manage, given the size of the company. For instance, asking for a $6,000 standing desk might be too expensive for a small company to absorb, but a large organization may be able to handle the expense.

Another example would be a request to work from home. It might be entirely possible for an accountant or web developer to accomplish their essential job tasks by working remotely, but a receptionist, cashier, or factory line worker could not.²

I've been discriminated against based on HIV status. What should I do?

If you believe you have been wrongly discriminated against due to your HIV status, there are steps you can take. First, seek legal advice from a source such as the Lambda Legal Help Desk or your nearest Equal Employment Opportunity Commission (EEOC).²

You will need to document the discriminatory behavior and then report the discrimination to the company’s human resources department or your union, in writing. In some cases, you must work through your company’s grievance process before making a claim with the EEOC. The EEOC requires you to file a claim within 6 months (180 days) of the occurrence, though in some special instances that time limit is longer. Some states provide additional legal protections against employment discrimination.^1-2