By Sey In, Staff Attorney
World AIDS Day was December 1. In a recent blog post, we covered a brief history of World AIDS Day and summarized some important cases and settlements. Today, we highlight selected rights of individuals with HIV/AIDS and how to file a complaint to enforce those rights. This blog post is not intended to be an exhaustive discussion of all civil rights or complaint options.
Title I of the Americans with Disabilities Act (ADA) prohibits discrimination by private employers with 15 or more employees, state and local governmental employers, employment agencies and labor unions. The Rehabilitation Act covers federal employees.
To be protected under these laws, an employee or applicant must be a qualified individual with a disability. Qualified means possessing the minimum job requirements for the position and being able to perform the essential functions of the job with or without reasonable accommodation. Disability means a physical or mental impairment that substantially limits one or more major life activities. According to the Equal Employment Opportunity Commission (EEOC) that enforces the ADA’s employment provisions, HIV and AIDS are physical impairments that will “virtually always” substantially limit the major life activity of the immune system. Disability protections apply to a person who has an actual disability, a record of a disability or is regarded as disabled. An individual is “regarded as” disabled if he or she has been subjected to an action prohibited under the ADA because of an actual or perceived physical or mental impairment whether the impairment limits or is perceived to limit a major life activity.
Scenario: an individual living with HIV/AIDS feels pressured to reveal their status
Revealing one’s own personal health information is a private and personal matter. Some may want to reveal to create a better culture of understanding, while others may not want to reveal for fear of discrimination. Generally, the ADA prohibits employers from asking applicants about disability-related questions or requiring a medical examination before the job offer. In most instances, an employee does not need to disclose their status. However, below are some instances when disclosing one’s status might be required:
- When an employee requests a reasonable accommodation and the disability or need for the accommodation is not apparent. The employer may ask for documentation from a healthcare provider about the disability and/or need for accommodation. However, an individual need not agree to release their medical records as part of the inquiry.
- After an offer of employment is made, an employer may ask certain questions or require a medical examination so long as they everyone in the same job category undergoes the medical examination or questions.
For more information about disclosure, please click here.
Scenario: an employee requests a reasonable accommodation due to their status, but the employer refuses to provide the accommodation.
The ADA and Rehabilitation Act requires covered employers to provide reasonable accommodations to qualified individuals with a disability who need reasonable accommodation unless it would result in undue financial or administrative hardship. A reasonable accommodation is a change in how things are done at work so that the employee can perform the essential functions of the job. It is up to the employee or a third party on the employee’s behalf to request reasonable accommodation(s). There is no specific method for requesting reasonable accommodation, although certain employers may use specific forms or procedures for reviewing the requests. The best practice for employees and applicant is to make the request in writing and to clearly state that it is a reasonable accommodation request.
People living with HIV or AIDS may face different physical limitations at times, because of the condition or treatment, such as fatigue, low vision, stress intolerance, photosensitivity, and dietary restrictions that require a reasonable accommodation. The Job Accommodation Network is a free service that helps employees and employers identify possible reasonable accommodations to address limitations imposed by a disability, such as HIV or AIDS. Here are three examples—described in JAN’s Compliance Guide for HIV and AIDS—of accommodation plans that JAN helped the employees and employers identify.
- A pharmacist was having difficulties standing for eight hours a day on a tile floor. This employee was responsible for filling prescriptions for medication. The work area was carpeted using extra padding, which assisted in reducing fatigue and a sit/stand/lean stool was purchased to assist employee when standing. Employee was also permitted to take frequent rest breaks throughout the day. This was possible since the employee cut his lunch hour down to 30 minutes, which provided him with 30 minutes that could be used at other times of the day whenever a break was needed and another pharmacist was available to cover his breaks.
- A machine operator was experiencing difficulties remembering the steps involved in changing a part on his machine. The employer provided the employee with a step by-step checklist and directions explaining how to do this.
- An accountant was experiencing eye sensitivity to fluorescent light in her office. As a result, she was unable to clearly view her computer screen or written materials due to glare. The accommodation solutions were to lower the wattage in the overhead lights, provide task lighting, and a computer screen glare guard.
For information about other common types of accommodations for employees with HIV, review the full compliance guide.
- For more guidance from the EEOC, click here.
- For more information about HIV employment discrimination, please click here.
Scenario: an employee reveals his HIV status and other employees begin to verbally harass, making working at the organization extremely difficult.
Harassment based on HIV/AIDS status is prohibited in the workplace. According to the EEOC, harassment becomes unlawful when, “1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.”
If you feel that you have experienced disability-related harassment, the EEOC recommends that you follow your company’s internal reporting procedures first, and if the employer does not take effective steps to end the harassment, you may file a charge of discrimination with the EEOC. For more guidance, please click here.
STATE AND LOCAL GOVERNMENT
The ADA also prohibits disability-related discrimination by local and state governments, including schools, family and children services, healthcare services, and housing services. The Rehabilitation Act prohibits discrimination by recipients of federal financial assistance, such as public schools and charter schools.
Scenario: a student is being denied admissions into a public or charter school (including post-secondary programs), is denied specific access to services open to other students or is harassed by other students.
There several ways a school could be held liable for discriminating against students living with HIV/AIDS. Historically, some public schools and universities have prohibited students with HIV/AIDS from attending for fear of transmission to other students or faculty. Today, while it is common knowledge that the risk of transmission in these situations is virtually nonexistent, schools still deny admittance or place restrictions on students with HIV/AIDS. Recent cases have held that these discriminatory practices violate the ADA.
Schools must also work to prevent harassment of students with HIV/AIDS. In the mid-1980s, Ryan White was a student with AIDS. He was harassed by classmates, made to use a separate bathroom, and was required to eat with disposable utensils. Today, guidance from the U.S. Department of Justice (DOJ) states that schools must take action should harassment take place.
If your child experiences harassment from other peers or teachers, then you should file a report with the school administrators, the superintendent, or the school board. If the discrimination persists, then you should consider filing a complaint with the U.S. Department of Justice (DOJ) or the U.S. Department of Education-Office for Civil Rights.
Students with HIV/AIDS also have a right to have their health status kept confidential. The Federal Education Rights and Privacy Act (FERPA) is the federal law that keeps a student’s health information confidential, with few exceptions. For more information about FERPA, click here.
Finally, the ADA prohibits disability-related discrimination by places of public accommodation “in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations” by those who lease or operate the public accommodation.
Scenario: a physician refuses to treat an individual with HIV/AIDS or places additional barriers towards treatment.
Right to receive treatment
A physician, or other healthcare providers, who refuses to treat a patient because the patient has HIV/AIDS, could be held liable for discrimination under the ADA or Rehabilitation Act. While healthcare providers undergo many steps to ensure the safety of those involved, recent cases demonstrate that denial of care is still common.
If the healthcare provider who is discriminating against you is a part of a bigger network, reach out to the larger organization to report the discrimination, making sure to document all efforts in writing. If the discrimination persists, you can consider filing a complaint with the U.S. Department of Health and Human Services (HHS)-Office for Civil Rights, DOJ or Arizona Attorney General’s Office – Civil Rights Division under the Arizonans with Disabilities Act (AzDA).
For other examples of public accommodations discrimination, please click here.
Scenario: the property management company at an apartment complex refuses to rent to an individual who has HIV/AIDS or a broker refuses to sell a home to an individual with HIV/AIDS.
The Fair Housing Act (FHA) prohibits disability-related discrimination in all types of housing transactions. The FHA also defines disability in the same manner as the ADA and Section 504 of the Rehabilitation Act. Therefore, someone living with HIV/AIDS would be considered disabled under the FHA. A property management company who refuses to rent to individuals with HIV/AIDS or a broker who refuses to sell because an individual has HIV/AIDS could be in violation of the FHA if they refuse to rent to you.
If you feel that you have been discriminated against because of your status, you can file a complaint with the U.S. Department of Housing and Urban Development (HUD). For more information about discrimination under the FHA, please click here.
HOW TO FILE COMPLAINTS WITH THE AGENCIES IDENTIFIED IN THE ABOVE SECTION
EEOC (accepting complaints regarding employment discrimination)
Phone: 800-669-4000, 800-669-6820 (TTY), 844-234-5122 (ASL Video Phone), 602-640-5071 (Fax)
Mail: EEOC – Phoenix District Office
3300 North Central Avenue
Phoenix, AZ 85012
Deadline: In Arizona, 300 days from the date of discrimination.
*If you work for a federal agency contact your EEO Counselor for your agency within 45 days of the date of discrimination.
DOJ (accepting complaints about discrimination in public accommodations and state and local governmental services)
Phone: 800-514-0301, 800-514-0383 (TTY), 202-307-1197 (Fax)
Mail: U.S. Department of Justices
950 Pennsylvania Avenue NW
Civil Rights Division
Disability Rights Section
Washington, D.C. 20530
Deadline: 180 days from the date of discrimination
DOE: Office for Civil Rights (accepting discrimination complaints about schools and educational facilities)
Phone: 303-844-5695; FAX: 303-844-4303
Mail: Office for Civil Rights-Denver Office
U.S. Department of Education
Cesar E. Chavez Memorial Building
1244 Speer Boulevard, Suite 310
Denver, CO 80204-3582
Deadline: 180 days from the date of discrimination
HHS—Office for Civil Rights (accepting complaints in discrimination in health care services)
Mail: U.S. Department of Health and Human Services
200 Independence Avenue, S.W.
Room 509F HHH Bldg.
Washington, D.C. 20201
Deadline: 180 days from the date of discrimination
HUD (accepting complaints in fair housing matters)
Phone: 415-489-6524, 800-347-3739, 415-436-6594 (TTY)
Mail: San Francisco Regional Office of FHEO
U.S. Department of Housing and Urban Development
One Samsome Street, Suite 1200
San Francisco, CA 94104
Deadline: One-year from the date of discrimination
Initiating* a Complaint with the Arizona Attorney General’s Office – Civil Rights Division (accepting complaints for discrimination in employment, public accommodations and fair housing under state law)
Phone: Phoenix: 602-542-5263, 602-542-8885 (Fax), 602-542-5002 (TDD)
Tucson: 520-628-6500, 520-628-6872 (TDD), 520-628-6765 (Fax)
Mail: Office of the Attorney General – Phoenix Office
2005 N. Central Ave.
Phoenix, AZ 85004
Office of the Attorney General – Tucson Office
400 West Congress
South Building, Suite 315
Tucson, AZ 85701
Deadline: 180 days from the date of discrimination in employment and public accommodation cases and one-year in fair housing cases
*After you initiate the complaint, the Attorney General’s staff will complete the complaint and send it to you to sign, notarize and return. The complaint is not filed until the signed document is returned to their office.