Can I Be Fired for Having HIV?
Our lawyers deal with a great number of cases involving discrimination in the workplace due to a person’s HIV status. We believe such discrimination is unacceptable and our law firm will take all steps to make sure victims of such injustice receive the compensation that they deserve.
The human immunodeficiency virus (HIV) is a pathogen that attacks a person’s immune system and makes them susceptible to other illnesses an otherwise healthy immune system could easily fend off.
At the California Labor LAW Employment Attorneys Group, we help people who believe that their rights were violated by their employer. We are asked many questions regarding an HIV-positive-person’s rights in the workplace, and what others can/can not do/say to them. Examples of such questions include:
- Can I be fired for having HIV?
- An employer did not hire me because of my HIV status. Can I sue my employer?
- Can I be discriminated against for having HIV or AIDS?
- My boss fired me for having HIV/AIDS. What are my rights? Do I need a lawyer to sue my boss?
- Can my employer fire me for having HIV?
- What are the laws regarding HIV and AIDS workplace discrimination?
- I face discrimination at work. My employer discriminates against me for having AIDS. Can I sue my employer?
- An employer asked about my HIV/AIDS status at the job interview. Are they allowed to do that?
Can My Employer Terminate My Employment If I Have HIV?
Terminating employees who have or have contracted HIV is against the law. Except in a few rare instances, your employer cannot terminate your employment for being HIV-positive or even ask if you have contracted the HIV virus during the time of your interview.
Whether or not a person has the HIV virus should not have any effect on what they can or can’t do at work. Whether a person can work or not needs to depend on their qualifications, talents, and their loyalty to the job.
There are laws which exist that are meant to protect employees from discrimination-based offenses. The biggest law which protects employees with HIV is the Americans with Disabilities Act (ADA), which makes it unlawful to discriminate against people who are considered “disabled” under the definition of the ADA. Under the ADA, a disability is any “physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such impairment, or a person who is perceived by others as having such impairment.” The ADA prohibits employers from discriminating against an employee who is disabled or appears to be disabled in workplaces of 15 or more workers. In 2008, Congress amended the ADA to include people with HIV, so people who are HIV-positive are covered and protected under this law.
Some workers with HIV may require some special arrangement in order to continue their employment duties. Reasonable accommodations are required by employers who have disabled employees under their roof. Reasonable accommodations include such things as modifying work schedules, making the office more mobile-friendly; anything that makes work-life for the employee easier and allows them to perform the “essential functions” of the job without causing the company too much stress.
Essential Functions: When referring to the essential functions of a job, the law means the core duties of that job – essentially why the job exists in the first place. For example, the core duties, essential functions, of a writer may be to type for 8+ hours every day. Employers cannot refuse to hire or terminate someone with HIV if they are able to perform the essential functions of that job. This assures that the person with HIV is not discriminated against and gives them equal opportunity.
How Do the Laws Protect Employees Affected by HIV?
ADA prohibits discrimination against employees who are protected under their definition of being disabled. There are two statutes in the ADA that play an important part in protecting those individuals with HIV.
This is a federal safeguard in the ADA which grants individuals afflicted by the HIV virus the right to reasonable accommodation. This can include such things as modifying the non-essential job tasks, flexible schedules, or other adjustments so that the employee can resume their work.
What is considered “reasonable?” This all depends on the employee’s condition and the employer’s size. The employer may not have the resources available to provide these accommodations, and in that case, the employer is not required to provide them.
Under the ADA, an employee does not have to disclose their disability unless it begins to impact their performance on the job. Employers cannot single out any employer and subject them to an HIV test unless that test is required and was taken by other employees in the past for that position. An employer cannot ask an employee if they have HIV unless the employer has objectively and empirically obtained evidence showing that the employee is showing signs of distress. Depending on the nature of your job, your employer may be legally required to keep your disease confidential. It’s always a good idea to tell your boss that you’d like to keep the nature of your conversation private.
Only the employee’s current state of health must be considered when judging their employment. An employer cannot assume or fear that the employee will become iller, and terminate that employee to get a healthy employee. An employer’s worries about the cost reasonable accommodations will cost cannot influence their decision on whether to hire or terminate someone.
An employer can terminate an HIV-inflicted employee if they can establish, through current scientifically supportable evidence, that there exists a significant risk to other employees’ health and safety. It must be noted, however, that there are very few occupational settings that make someone’s HIV a risk to the health and safety of others.
Can an Employer Change My Position Because of HIV?
There still exists a lot of ignorance when it comes to the transmission of the HIV virus. Your employer cannot change your position, or fire you from the position, just because they are afraid of people who have contracted the HIV virus. They also cannot change your job if they believe that other coworkers or customers will be afraid of someone who is HIV-positive. The only way that an employer can legally change your job is if your job can risk your health and safety and if there is a high chance that you will infect other people. There are not many jobs that have a high risk, but they do exist.
How Do I File a Charge Against My Employer If They Violated My Rights?
Filing a charge against your former employer can be nerve-wracking, so it is important that you consider all the facts and ask the tough questions before you legally proceed with any complaint you may file against them, and it is also recommended that you hire an attorney. Here are some steps which you may want to consider if you believe that you have been discriminated against for being HIV-positive and want to file a claim against your former employer.
Get Legal Advice
– Getting legal advice from qualified attorneys will help speed things along as they are well-versed in employment law and can help represent you in all matters that have to do with your case if you hire their services. Our Los Angeles attorneys can help people from all over California. If you are in Los Angeles or outside Los Angeles, you can call us for a free consultation.
Document the Discrimination
– If you believe that you have been discriminated against for being HIV-positive, try to document the evidence against your employer and make a list of any potential witnesses who may have witnessed the discrimination. Evidence may include emails, photographs, or other physical evidence which shows discrimination.
In your notes, include the chronology of the events leading up to the unlawful termination, and any issues you faced at work. In the journal, it is a good idea to have a copy of your employee manual, and other paperwork that your previous company policy allows you to have. If you can, obtain your personnel file: some states require that your employer release these records upon your request, while others may require that a subpoena exist in order for them to legally hand over the papers. The evidence you collect must show that it was more likely than not that your employer discriminated against you for being HIV-positive. Courts can infer this if your employer deviated from normal practice when it came to your discharge.
Common forms of discrimination that employees that are HIV-positive are as follows:
- Hiring and Promotion: Employers are legally required to hire those people who are the best fit for the job based solely on qualifications, not personal characteristics. People with HIV are often seen as threats to workplace safety and may be discriminated against.
- Hostile Work Environment: Because perception of HIV is so negative, those that are HIV-positive may experience workplace hostility by those in the workplace. Insults and generally being treated negatively is against the law.
- Wrongful Termination: If an employer learns about an employee’s condition, the employer may not act solely on that fact. The employer must make reasonable accommodations to help the employee, not terminate them.
- Sexual Harassment: Sexual harassment does not allow for any sexual advances in the workplace, but it also prohibits sexually explicit gestures, sexist jokes, pornographic images, and sexual connotation.
- Pursuing Legal Action – Before you sue your employer, you must first file a charge with either a state or federal government agency. The federal agency which oversees an employer’s ethical treatment of employees is the Equal Employment Opportunity Commission (EEOC). Each state has its own variation of a government employer-employee agency which the EEOC refer to as Fair Employment Practices Agencies (FEPAs). In the state of California, this is called the California Department of Fair Employment and Housing (DFEH). The EEOC and FEPAs have a work-sharing agreement in which when you file a charge with one agency, a copy is immediately sent to the other to avoid any unnecessary duplications of discrimination charges.
If you plan to file your charge with the EEOC, you must submit your claim within 180 calendar days of the incident. If your state’s FEPA prohibits discrimination on the same basis, the deadline extends from 180 days to 300 days.
The knowledgeable attorneys at California Labor Law Employment Attorneys Group are ready to evaluate your claim and provide you with the information that you need to better understand the timeframes applicable to your claim, do not hesitate to contact our firm today.
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