The HIV Conundrum
It was three months after the Sept. 11 terror attacks, and Lorenzo Taylor was looking forward to helping his country. Fluent in three languages and holding a foreign service degree from Georgetown University, Taylor had easily passed the tough exams for becoming a foreign service officer for the U.S. Department of State.
He received his conditional letter of employment. Then he went in for the required physical exam and revealed that he had HIV. One week later, he was told he couldn’t join the State Department. The agency has a rigid rule against hiring people with the disease. It didn’t matter that Taylor was in good health or that he had been HIV-positive for 17 years without suffering any symptoms, thanks to his daily dose of medications.
After unsuccessful efforts to get the State Department to reverse its decision, Taylor filed suit on Sept. 3, 2003, alleging the agency discriminated against him in violation of the Rehabilitation Act. He sought, among other relief, an end to the blanket policy against hiring HIV-positive individuals as foreign service officers. And in late June, the U.S. Court of Appeals for the District of Columbia Circuit ruled that Taylor presented “more than enough” evidence for his case to go in front of a jury. Taylor v. Rice, No. 05-5257.
“It is amazing that 25 years into the AIDS epidemic, the Department of State still has this draconian policy,” Taylor says. “They seem to be stuck in 1985. … They are looking at these people [with HIV] as if they would get in and die within a few months. They are not viewing it as a manageable, long-term disease.”
Taylor’s difficulties are far from unique. Despite years of public education, workplace discrimination continues to be a serious problem for people with HIV or AIDS.
Moreover, because modern medicine allows HIV-infected individuals to live long and healthy lives, they are spending many more years in the workplace—and are facing a variety of new employment law problems. Among the most pressing issues:
• Legal protections for asymptomatic employees.
• Health insurance coverage.
• Employer requests for medical information.
• Employer confidentiality for medical information.
“We’re fighting the same battles as 20 years ago, and some new ones,” says Ann Hilton Fisher, executive director of the AIDS Legal Council of Chicago.
BETTER, BUT NOT
In many ways, the situation of hiv-positive workers has improved greatly since June 1981, when AIDS was first discovered and made headlines around the world. Science has found ways to limit the spread of HIV. Anti-retroviral cocktails have minimized the effects of the disease. Widespread educational campaigns have removed much of the stigma and fear concerning HIV.
But much fear and prejudice remain. “There is still a fair amount of discrimination, both from employers and coworkers,” says Shelley Hayes, a Washington, D.C.-based consultant and vice-chair of the AIDS Coordinating Committee of the ABA Section of Individual Rights and Responsibilities. “If you reveal you have HIV, people treat you differently. They may think you’re not reliable. Maybe you don’t get the assignments you want, and your career doesn’t progress. People may not want to work next to you or to socialize with you.”
Two federal laws may protect HIV-positive workers from discrimination. The Americans with Disabilities Act, enacted in 1990, prohibits private employers from discriminating against individuals with disabilities. The Rehabilitation Act, enacted in 1973, prohibits such discrimination by the federal government and in federally funded programs.
Both statutes forbid discrimination against any employee or job applicant who is disabled or regarded as disabled, provided the individual can perform the essential functions of a job. Both statutes also require an employer to make reasonable accommodations to such employees’ disclosed disabilities, unless the accommodation would impose undue hardship on the employer. Workers and applicants whose rights are violated can sue for lost earnings, punitive damages and (if they are fired) reinstatement.
In the real world, however, the statutes may offer only limited protection. For one thing, the ADA doesn’t apply to businesses with fewer than 15 employees, which means the millions of people working in small businesses cannot claim the law’s protections.
Also, obtaining relief under the statute is costly and time-consuming. First, the worker must file a complaint with the Equal Employment Opportunity Commission, which is supposed to investigate the allegations of discrimination. If the EEOC finds probable cause for believing the law was violated, the agency attempts to resolve the dispute.
But some lawyers complain the EEOC provides little help to victims of workplace discrimination. “The EEOC is tremendously understaffed,” Fisher says. “It never investigates most of the complaints that come to it.”
If the EEOC fails to investigate a complaint or to otherwise resolve the dispute, the agency will issue a right-to-sue letter that permits an aggrieved worker to seek relief in court. But the agency doesn’t issue those letters quickly.
“You typically must wait a year before you can go to court,” says David Webber, a Philadelphia attorney who is of counsel to the AIDS Law Project of Pennsylvania. “That’s a long time for a client to wait.”
When a worker is finally able to bring a lawsuit, he or she faces the usual problems of litigation: high legal costs and a case that can drag on for years.
Moreover, at the end of the day, there’s a high probability the worker will lose the case. “Employers win more than 90 percent of ADA claims,” says Felix Lopez, director of legal services for Gay Men’s Health Crisis in New York City.
ADA claims are difficult to win because the employee has the burden of proving discrimination occurred, and such proof is often hard to come by. “Circumstances can be construed in more than one way,” Lopez says. “The facts can be very difficult to tease out.”
WHAT IS A DISABILITY?
Another major legal obstacle for plaintiffs: the relatively recent medical advances that have turned HIV from a death sentence into a manageable, long-term disease. By keeping HIV-positive individuals healthy, modern medicine has made it difficult for these individuals to prove they are disabled and thus obtain ADA protection.
The ADA defines disability as “a physical … impairment that substantially limits one or more of [an individual’s] major life activities.” If drugs are able to keep HIV-positive workers healthy, how can those workers claim the disease has impaired any of their major life activities? Female workers can use the U.S. Supreme Court’s decision in Bragdon v. Abbott, 524 U.S. 624 (1998). In that case, the court held that an asymptomatic woman with HIV was disabled because the disease hindered her ability to procreate, which is a major life activity. Sidney Abbott wanted to have children but decided not to try because she was afraid of infecting her sexual partner and any resulting child with HIV. The court found this fear was not unreasonable, even though the risk of infection was relatively small. “It cannot be said as a matter of law that an 8 percent risk of transmitting a dread and fatal disease to one’s child does not represent a substantial limitation on reproduction,” Justice Anthony M. Kennedy wrote in the majority opinion.
Gay men have tried to rely on Abbott with mixed results. Some courts have found Abbott doesn’t apply because gay men have no intention of procreating by having sex with women; thus the disease did not interfere with any activity the plaintiffs would undertake. Other courts have found the personal inclinations of a plaintiff are irrelevant. Whether or not a plaintiff intends to engage in sexual reproduction, his HIV status significantly interferes with his ability to do so since engaging in unprotected sex with a woman may result in infecting her with HIV.
“You can point to a bunch of decisions on one side that say asymptomatic AIDS for gay men is a disability [regarding procreation] and a bunch of decisions on the other side that say it isn’t,” Webber says. “Years after passage of the ADA, it remains a contentious issue.” Many asymptomatic plaintiffs have tried to avoid this issue by asserting other grounds on which HIV renders them disabled. They haven’t had much luck, however, because the courts have rigidly construed disability.
In Toyota Motor Manufacturing v. Williams, 534 U.S. 184 (2002), the Supreme Court ruled that in order to have a disability under the ADA, “an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people’s daily lives.” The ruling overturned a 6th U.S. Circuit Court of Appeals decision that found Ella Williams was covered by the ADA because her medical condition, carpal tunnel syndrome, caused her to avoid sweeping, quit dancing and occasionally seek help dressing. It also limited her ability to play with her children, garden and drive long distances. The court found that those changes in her life did not constitute severe restrictions in activities that are of central importance to most people’s daily lives.
The Cincinnati-based 6th Circuit also found Williams disabled because her medical condition prevented her from doing her job on Toyota’s assembly line. This failed to satisfy the Supreme Court because it established only that Williams could not perform a specific job. The court stated, “Even assuming that working is a major life activity, a claimant would be required to show an inability to work in a ‘broad range of jobs,’ rather than a specific job.”
The Toyota decision has left attorneys and lower courts uncertain about how incapacitated a person must be to be considered disabled, according to Ruth Colker, who teaches disability discrimination law at Ohio State University. She says, “How long does the list have to be” of the things a plaintiff can’t do?
Even when HIV-positive plaintiffs are able to prove they are disabled and that their employers discriminated against them, such proof is often not enough to win cases. An employer can still prevail by asserting an affirmative defense that it discriminated against the plaintiff to protect the plaintiff and/or other people.
In Lorenzo Taylor’s case, the State Department is claiming that if Taylor becomes a foreign service officer, he will be required to work in Third World countries with poor health standards, and this will pose a threat to Taylor’s health. Taylor’s doctor disputes this, and in the past Taylor has repeatedly traveled to developing nations without suffering any adverse consequences.
Nevertheless, the affirmative defense carried the day in the U.S. District Court for the District of Columbia. On April 20, 2005, Judge Rosemary Collyer granted summary judgment to the State Department. She held that working as a foreign service officer would pose a direct threat to Taylor’s health, and that this threat could not be reduced or eliminated by reasonable accommodations.
But the D.C. Circuit went on to reverse that decision, and Taylor’s case will return to district court. Judge Arthur Raymond Randolph stated in his June 27 opinion: “The secretary’s claim that granting Taylor Class 2 clearance is unreasonable and would impose undue hardship is suspect” because the State Department sometimes hires candidates with medical conditions other than HIV.
Courts are split over the standard required for a defendant to discriminate against someone with a disability. The 11th Circuit, based in Atlanta, has held that a dentist could fire an HIV-positive dental hygienist because the hygienist might “theoretically” infect a patient, “even though the risk is small and such an event never before has occurred.” The 1st Circuit, based in Boston, sets a tougher standard, requiring that a defendant must use the best available scientific evidence to determine if there is a significant risk.
Because it is so difficult for HIV-positive people to win employment discrimination suits under the federal law, many plaintiffs attorneys prefer to sue under state and local anti-discrimination laws. These laws largely mirror the ADA, but many of them have greater scope by applying to businesses with fewer than 15 employees.
State laws also may offer a more expansive definition of disability, which makes it easier for an asymptomatic plaintiff to be protected. New Jersey, for instance, explicitly states that HIV is a disability, whether or not the disease impairs any major life activities of an infected person.
The state court system may also provide some advantages to plaintiffs. “Lots of lawyers have been telling me they prefer to sue in state court because … state judges are more likely to deny [employers’] summary judgment motions, and because they prefer to have a local jury, which might be more sympathetic,” Colker says.
“If these discrimination cases get to juries, the plaintiffs don’t do too badly,” Colker adds. “The real job is to get past summary judgment and bring the case to a jury.”
JUST THE JOB
Nevertheless, for many individuals with hiv or aids, the best legal option may be to avoid the costly, lengthy and risky process of litigation. “As we tell our clients all the time, a job is better than a lawsuit,” says the AIDS Legal Council’s Fisher.
Much of the work done by attorneys in this area is thus intended to keep their clients’ HIV status hidden from their employers or potential employers.
It is illegal, for instance, for an employer to ask a job candidate what medications he or she is taking or whether the candidate suffers from a specific illness. But if a job-seeker is presented with such an illegal question, it is often preferable to provide an answer that would satisfy a lawful medical inquiry (and may satisfy the employer) rather than bring a lawsuit in which the job-seeker will have the burden of proving illegal discrimination played a substantial role in not being hired. Lopez suggests job candidates with HIV merely say, “I don’t suffer from any medical condition or take any drugs that prevent me from performing the essential functions of this job.”
Similar problems arise when workers with HIV need to submit health information to sign up for or receive benefits from company-sponsored health insurance. Large companies usually have policies and procedures that keep such information confidential, but small companies often do not. So HIV-positive workers, especially if they work at small businesses, may want to resort to various ploys to keep their medical information out of their employers’ hands.
One method Fisher recommends is bypassing the employer entirely: “Tell the boss that ‘I’m going to have my doctor fill this form out. He’s a nut about privacy, and he will want to send it directly to the insurance company. Can you provide me with the contact information for the insurance company?’ ”
Under certain situations, however, an employee has no choice but to disclose HIV status. If an employee with HIV is battling an opportunistic illness, or if medication is making the worker tired or sick, he or she may be unable to work a regular shift. The employer had better be informed about the condition, and time off or a modified work schedule should be requested. Otherwise, the employee may be in big trouble. Repeated, unexplained absences may result in job discipline or termination.
Once the disciplinary process has begun, it may be too late for the employee to disclose HIV status and to seek a reasonable accommodation from the employer. The ADA applies only after an employee’s disability is disclosed to the employer; the statute doesn’t offer retroactive protection for an employee’s actions prior to the disclosure.
Of course, a sick employee who discloses HIV status is taking a risk. Should the information get out, the worker may face discrimination that hampers or kills his or her career. Still, employers have a good reason to protect the confidentiality of their employees’ medical information. Workers have successfully sued their employers when their medical information was improperly revealed to others in the company. Plaintiffs are more likely to win these suits if they can show that the disclosure has caused them to suffer some harm in their workplace.
To avoid this type of legal trouble, employers of all sizes need to take proper precautions. “Large companies should have policies in place about what information should be kept confidential and how it should be kept confidential,” says Kathleen Furey McDonough, an employment law attorney in Wilmington, Del.
Medical information should not be put in an employee’s personnel file, advises Dawn Siler-Nixon, a Tampa, Fla., attorney and a member of the AIDS Coordinating Committee of the ABA Section of Individual Rights and Responsibilities. The information should be kept instead in a separate file that is in a separate, secure location.
“It should be kept in the HR manager’s office in a locked file cabinet and not disseminated at all unless there is a threat of harm—where there may be blood-to-blood contact with another person,” Siler-Nixon says.
HIV AND COSTS
One rapidly growing problem facing hiv-positive workers has nothing to do with prejudice. It’s all about the bottom line.
Health insurance costs are ballooning, and these costs have become so large that companies are desperately trying to trim the expense. As a result, one increasingly common tactic is to discriminate against workers with high health care costs.
“In most states, employers are paying insurance rates that are dependent on the health of their employees,” Fisher says. “This creates a huge incentive for even the most enlightened employer to discriminate against workers with HIV. … I know of HIV-positive employees at gay-owned businesses who are facing direct and indirect pressures from their employers, encouraging them not to sign up for health insurance.”
It is, of course, illegal discrimination for an employer to deny insurance only to employees with high health care costs. But resisting pressure from an employer and signing up for the employer’s health insurance may not solve an employee’s problem. The employer is under no legal obligation to offer health insurance, and the employer may simply drop its health insurance plan for all employees.
An employer may also legally offer a health insurance policy that provides only limited benefits to HIV-positive employees. For instance, the policy may not cover any HIV drugs for the first year an employee is covered, and thereafter will pay a maximum of just $1,000 per year for them. The average annual cost for the drugs is $12,000 to $16,000.
So what is an HIV-positive worker to do?
“We tell our clients who are looking for work to try to find a big employer,” Fisher says. “If a company is large enough, its health care costs will average out [among the different employees], and the company won’t seek to remove insurance from those with costly medical conditions.”
For employees at small and medium-size companies, there are no easy answers. “When this was just a problem of prejudice and ignorance, we could educate ourselves around the problem,” Fisher says. “But when it is a problem of the pocketbook, it is very hard to come up with a solution.”
As for Taylor, he has his own prescription for success.
“If I win the case, I want to be assigned as a foreign service officer,” Taylor says. “And I want [the State Department] to change its policy so that no one else will go through what I went through.”
Steve Seidenberg, is a lawyer and freelance journalist in Fanwood, N.J., who contributes regularly to the ABA Journal.
